Moore. v. Roe

Dodd, V. C. The bill in this casé is filed by a judgment creditor to set aside a conveyance made by his debtor, the defendant, to his [91] mother, during the pendency of the action in which the judgment was recovered. The defendant, William T. Roe, was, on the 24th of May, 1880, seized of a farm of about ninety-two acres, in the township of Stillwater, county of Sussex, which by deed of that date he conveyed to Susan Roe, his mother, and co-defendant. The complainant, Charles Y. Moore, a practising physician, brought an action of assumpsit against William T. Roe, on the 1st of that month, in the circuit court of Sussex, and on the 14th of July following, obtained a judgment for $434.29 damages and costs. A ft. fa. de bonis et terns to the sheriff was returned that he could find no goods, and that he had levied on the above lands. The bill alleges that the conveyance was made without consideration, or, if with consideration, that it was intended to hinder and delay him in the collection of his debt, and should therefore be adjudged void as to him, and prays that it may be so decreed. I am of opinion that the complainant is entitled to the relief which he asks for. It seems to me clear, from the evidence, that, while not without any consideration, the consideration was inadequate, and further, that if adequate to the value of the premises conveyed, the intention of the parties to it was to hinder and delay the complainant in collecting his debt. The defendant, Susan Roe, to whom the conveyance was made, was a widow of advanced age, having several married children, and possessed of pecuniary means amounting to $10,000 or $12,000. She had let each of them have moneys which seem to have been regarded as advances, on which only the interest was expected to be paid. The defendant, William T. Roe, had received different sums at various times, for which his mother, at the date of the conveyance, held his promissory notes. Other sums besides those named in the notes are alleged to have been owing, but how much does not accurately appear. On the 14th of May, 1880, Mr. Thompson, the complainant’s attorney, served a copy of the declaration in the action which was begun on the first of the month, on the defendant therein, [92] who said to him, “ Go ahead; I guess you won’t get much,” or words to that effect. The conveyance, which was made ten days afterwards, was absolute, and conveyed all the property the defendant owned. The consideration named in it was $2,000, and, in addition, the premises were conveyed subject to a mortgage for $1,450, with accrued interest from April 1st, 1869. It clearly appears that this deed was made at the suggestion of William. There was no desire or offer on her side to buy. There were wanting the essential elements and features of a bona fide sale. It is evident that the premises would not have been conveyed to her but for the expected judgment of Dr.. Moore. She testifies that she knew that he was pressing for his claim, and that William offered to give her a deed. When asked if she did not know that Dr. Moore could not sell the farm if she held the title, she answered that she did not want him to; that she wanted to get hers. When asked if she took the farm to prevent Dr. Moore from getting his claim, she answered that she took it to get hers. When the conveyance was made, the true amount of William’s indebtedness to his mother was not ascertained, as in a genuine bargain it would have been ; nor was the price or value of the farm considered and settled, as it would have been if the transaction had been in reality what it purported to be. The indebtedness was arrived at in a proximate way. The answer says it was about $2,000. I think it was considerably less. The mother testifies that, “it might have been $1,400, $1,500 or $1,600; it might have been more ; it might have been less.” The son testifies that when he made the conveyance, the sums he owed his mother aggregated about $2,000, as they summed them up. The farm appears to have been worth, in the market, not far from $4,000. The witnesses differ as to its value. The transaction cannot, I think, be reasonably taken to have been a bona fide sale and purchase. It is, in fact, but feebly insisted on as anything more than a mode of securing to the mother the payment of her alleged claim. Regarded in that light, it was, under the circumstances, illegal and unfair. If no .intention had been entertained to hinder or delay the com [93] plainant, the mother’s claim, if just, would naturally and properly have been secured by a mortgage giving her a prior lien on the land to the extent of her debt, and leaving the balance of the son’s estate therein to be resorted to by his creditors. The course actually taken was a deceptive and embarrassing one, calculated to mislead and impede the creditor, who was known to both parties to the deed to be prosecuting his claim. It is not difficult for parties taking such a course to deny the existence of an intention to hinder, delay or defraud, and so far to persuade themselves that their only purpose was to secure a debt due the grantee, as to make their denial without willful perjury, but the unavoidable inferences from their acts will countervail their denial. In Bump on Fraud. Con., the transfer of all the debtor’s property is declared a badge of fraud; so, also, the existence of indebtedness and the pendency of a suit; also, the taking of an absolute deed as security for money, for it is calculated to make creditors believe that no part of the property is subject to their demands, when, in fact, it is otherwi.se; also, the circumstances of looseness or incorrectness in stating the consideration of the conveyance, or in determining the value of the property conveyed. Bump on Fraud. Con., ch. 3, 4; Garr v. Hill, 1 Stock. 210 ; Knight v. Packer, 1 Beas. 214 ; Sayre v. Fredericks, 1 C. E. Gr. 205; Tantum v. Green, 6 C. E. Gr. 364. Oonsidering all the facts and circumstances of this case, I cannot doubt that the conveyance in controversy was devised and intended to delay and hinder the collection of the complainant’s debt, and must therefore advise a decree accordingly.