Dart v. Farmers' Bank

By the Court, Ingraham, J. 1. The representative character in which the plaintiffs bring their action, and their right to bring this action in that capacity, is not disputed by the pleadings. The complaint avers that the plaintiffs are the executors of Peter H. Sehenck, deceased, and makes proferí of the letters testamentary. The answer in no way denies such ex-ecutorship, or such letters. Por the purposes of this action it must be taken as true that such letters testamentary were granted, and were sufficient. The averment is not that letters were issued in this state, and without some denial of the plaintiffs’ right to represent the estate, the defendants are precluded from setting the objection upon the trial. 2. The defendants having appeared in the action, are, for the purposes of this action, as much within, and subject to, the jurisdiction of this court as if they were a corporation under the laws of this state. It is true that for the purposes of certain provisions of the statute of limitations, they can never come within the description of those who are called residents, so as to allow the statute to run against them; but their foreign origin does not prevent actions against them for any cause when they can be brought within the jurisdiction of the court. (1 Denio, 441.) It was Urged, on the argu [344] ment, that the plaintiffs had no right to the property when the trespass was committed; but their title to the property was a question of fact, as to which there was ample testimony to sustain the finding of the jury. There was evidence that Peter H. Schenck had taken possession of the property during his life, and employed Servoss to go on manufacturing on his account; and that the business was carried on in his name, and bills made out in his name. The evidence also showed possession, on the part of the plaintiffs, after the death of the testator, and that the executors carried on the business a few months. Mere possession by the executors would be sufficient to maintain trespass, against a wrongdoer, and there can be no doubt of the sufficiency of this evidence to sustain the finding of the jury on this point. 3. Whether there was fraud or not, as against creditors, in the transfer of the property to Peter H. Schenck, was a question belonging to the jury, under the evidence; and if the judge, in his charge, refused to submit to them the question, as he was requested to do by the defendants’ counsel in the fourth request to charge, it would have been erroneous. It is stated that the judge refused to charge as requested, but this refers to all the requests collectively. In his charge, however, it appears that he did submit to the jury the question of fraud in the transfer, when he told them that fraud vitiated the contract, and that the law would not allow an assignment to be made by a debtor for his own benefit, or to hinder, delay or defraud his creditors. 4. The next objection is to the charge of the judge, which stated that the plaintiffs were entitled to recover, on proof of a fair consideration, an open, notorious taking of possession, a freedom from an intent to defraud on the part of the testator, and a continued possession on the part of the testator after the purchase. The cases referred to by the defendants’ counsel do not apply in this case. The sale to the testator, here, was an absolute one; was made in payment of debts due, and in part of advances then made, and was neither a [345] Voluntary conveyance without consideration, nor an assignment for the benefit of creditors. In Mead v. Phillips, (1 Sandf. Ch. Rep. 85,) the transfer was to assignees for the benefit of creditors. In Mohawk Bank v. Atwater, (2 Paige, 54,) the transfer was under a voluntary conveyance of a father to his son, without any consideration. And in Rathbun & Dow v. Platner, (18 Barb. 272,) the deed of assignment was for the benefit of creditors. In regard to all such conveyances, in the latter case Judge Mason says, “our statute pronounces void all such assignments which are made with the intent to hinder, delay or defraud creditors, ® * * * when the assignees have been perfectly free from the imputation of fraud; but the court, at the same time recognizes the distinction between these cases and that of a debtor who conveyed property directly to his creditor in payment and satisfaction of a bona fide debt, where the conveyance was upheld, although it was made by the debtor with intent to hinder, delay and defraud other creditors, if the grantee was not a party to the fraud. The case of Waterbury v. Sturtevant, (18 Wend. 353,) is a full authority on this point. Senator Edwards, in that case, says, “In order to make the conveyance fraudulent and void ' as to the grantee, fraud or a fraudulent intent must be shown on his part, as well as on the part of the grantor. To render the conveyance void there should be a fraudulent motive on the part of the purchaser as well as the seller." There wa,s no error in the charge of Mr. Justice Whiting on this point. 5. The charge in regard to the character of the indebtedness, and whether it was the individual indebtedness of the sons, or the indebtedness of the firm, distinctly submitted those questions to the jury, with the instruction that if the liabilities given up were not those of the partnership the sale would be void. The charge contained all that the defendants liad a right to insist upon, on that point, and left those questions, as we think, fairly to the jury. 6. Several exceptions were taken to the rulings of the court [346] as to the admission of evidence. They were not particularly noticed on, the argument. In examining them, we have not been able to see that any error was committed in regard to any of them by the decisions! [New York General Term, May 3, 1858. Davies, Clerke and Ingraham, Justices.] There does not appear to have been any error of law in the course of the trial, which would sustain the court in reversing the judgment, and the questions of fact are of such a character, and the evidence in regard to most of the questions so conflicting, that they can only be disposed of by the finding of the jury. In such a case the court cannot interfere with their verdict. The judgment should be affirmed.