Baldwin v. Ryan

E. Darwin Smith, J. It was error to receive the certificate of the county clerk to prove the issue and return of the execution. The execution, with the sheriff’s return thereon indorsed, was the proper evidence of these facts. This exception is a valid one, and would have been fatal if it had been necessary for the plaintiffs to show the issue and the return unsatisfied, of an execution. This was unnecessary, as the action was not instituted to reach equitable property, but to remove incumbrances upon real estate which were in the plaintiffs’ way in enforcing his judgment, which was duly proved. Crippen v. Hudson, 13 N. Y. 171; Payne v. Sheldon, 63 Barb. 169. But the referee erred, we think, in holding that the deed from J ames and Ellen Eyan to Virgil A. Willard, and the deed from Willard to Ellen Eyan, and the mortgage from the said Ellen to John Hood, were void as against the plaintiff, and should be set aside. The deeds from James and Ellen Eyan to Willard, and from Willard to Ellen, were simply instruments designed to vest in her the whole legal title to the said premises. They were at most simply voluntary conveyances, so far as they conveyed the interest of James Eyan to his wife, and were not for that reason fraudulent or void. It was necessary for the plaintiffs to have shown, to justify setting them aside on that ground, that they were made when the husband had not other property left sufficient to pay his debts at the time of said conveyance, which was not proved; but, on the contrary, it was proved, and the referee found that he had at that time considerable personal property. Babcock v. Eckler, 24 N. Y. 623. But, beside this consideration, it clearly appears that Mrs. Eyan was in fact the real and equitable owner of this land. She had paid, or procured through her friend Hood to be paid, the whole consideration for the land. Eyan had not paid one cent of the purchase-money. It was but right, therefore, for him to convey the whole legal title to her, and this was all that was accomplished by [254] these two deeeds. Mrs. Ryan was and could be guilty of no fraud in taking the legal title to herself, as she had the whole equitable title. Nor was it fraudulent in her to give the defendant Hood a mortgage on said land to secure her debt to him for his advances to her. If these deeds and this mortgage had not been executed the equitable rights of Ellen and of Hood, in respect to this land, were superior to the plaintiffs’, and would have been protected. Dygert v. Remerschnider, 32 N. Y. 629. The plaintiffs had no judgment when these deeds and this mortgage were executed, and the right of the defendant Hood to take a mortgage on this property as security for his debt, and the right of Ellen Ryan to give such security, cannot, I think, be doubted; and such mortgage would be and is a valid security precedent to any lien of plaintiffs’ judgment or their rights under the same, and there can be no fraud in such a transaction. Ryan had paid no part of the consideration on the purchase of the land, and it does not appear that he had added to the value of the property by any improvements made with his own funds. Ellen, it seems to us, was the equitable owner of these premises, and had the right to take from him a conveyance or release of his share in the nominal title; and, if he recognized her right as such equitable owner, he had the clear right to clothe her with the whole legal title before any liens were actually acquired against such property. We, also, do not see any valid objection to the deed from Benjamin F. Whitney to Ellen Ryan. The objection of adverse possession at the time of the execution of said deed does not apply to judicial sales or deeds, nor to deeds executed by the comptroller of the State in pursuance of law. Hubbell v. Welden, Hill & Denio, 142. And it was error to set aside the deeds aforesaid and the mortgage to Hood, in any view, even though the deed of Ryan, through Willard to his wife, was held to be fraudulent as against the plaintiffs. They were valid between the parties, and the plaintiffs could only reach such interest as Ryan had in said land at the time of these conveyances. This he might be allowed to sell, and the purchaser would be substituted to Ryan’s place. He could have no higher interest in the land. Otis v. Gilmore, 7 Lans. 245. The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event. ■Judgment reversed and new trial granted.