Wilson v. Bajardi

HOUGH, Circuit Judge (after stating the facts as above). The mortgage in question was executed, and indeed recorded, more than four months before petition filed; wherefore the ease raises questions under the law of New York only. The bankruptcy merely confers a title on plaintiffs. The transfer by her brother Vincenzo to the defendant, if without a consideration legally valid, was made at a time when he was indebted, and is therefore presumptively fraudulent. GaNun v. Palmer, 111 N. E. 223, 216 N. Y. 603. No consideration can be found in the mere fact that defendant had kept house for many years for her brothers, during which time she had been supported by Vincenzo. The rule is that in such labors the law finds no implication of a promise to pay, for (as was said in a case singularly like this) “the services rendered in such cases are mutual, and it may be often difficult to decide upon which party the principal benefit is conferred.” Updike v. Titus, 13 N. J. Eq. 151. Let it be admitted that at common law a pre-existing indebtedness is a consideration sufficient to uphold a conveyance (Lehrenkrauss v. Bonnell, 92 N. E. 637, 199 N. Y. 240), even though the mere existence of a precedent debt is not a sufficient consideration to support a conveyance as against prior equities (Orthey v. Bogan, 123 N. E. 487, 226 N. Y. 234, at page 239, and cases cited), there must still be a promise on legal consideration. By the testimony of defendant there was no indebtedness at the time the promise was [924] made, although she had at that time kept house for her brothers for about 14 years. This follows from the fact that, by her own statement, she had never asked'for pay, and the mere fact of doing the work raised no presumption of a promise to pay for it. The question comes to this: Defendant says Vincenzo made a promise, after which defendant worked 5 years in reliance on that promise. Does this amount to a consideration sufficient to support the transfer? Putting the matter in another way, it is urged that the consideration for this conveyance was 5 years’ housekeeping in reliance upon a 'promise to “give” defendant some mortgages when her brother sold a certain house. We shall assume, but not decide, that if the promise was made; and the mortgages given constituted a reasonable fulfillment of promise, a consideration would exist for the conveyance when made. The lower court has not by opinion informed us of the exact ground on which defendant’s ownership of this mortgage was upheld. We therefore feel compelled to examine and appraise the evidence by which decision must be made. It is found that as a payment, reward, or “gift” for 5 years’ housekeeping the defendant, without ever asking for any specific sum, and without any agreement upon any specific sum, was made the record owner of mortgages aggregating about $24,000, and, so far as shown, worth that sum, and that these transfers were completed at a time when the business affairs of Vincenzo Bajardi were desperate; his firm being grossly insolvent. We note, also, that when plaintiffs attacked the transaction, it was supported by nothing but the unsupported recollection and assertion of the most interested person, whose intelligence and education may be appraised by reading the foregoing quotations from her evidence. Further, her story received no support from the man said to have made the promise. The circumstances fit all too closely a typical effort to save for the family something from the family shipwreck. We are forced to hold that the story of a promise cannot be believed. Doubtless defendant did the work as related; doubtless, also, she received support according to her habit of life; but the alleged promise to givo her an uncertain sum at an indefinite time cannot in our judgment be accorded credence, and for this reason the decree below is reversed, and the cause remanded, with directions to grant the relief prayed for in tho bill.