Opinion
Argued September 28, 1875
Decided November 9, 1875
S.H. Thayer for the appellants.
Edward H. Hobbs for the respondents.
Conceding the claim of the counsel for the plaintiff, that the finding of the referee that the conveyance to Mrs. Burnham was founded upon a valuable consideration in equity was erroneous, yet this does not entitle the plaintiff to a reversal of the judgment. Although the conveyance from the husband was voluntary, it was not, for that reason, necessarily or presumptively fraudulent, as against his creditors. This I understand to be the necessary inference from the statute, which declares that no "conveyance or charge shall be adjudged fraudulent as against creditors or purchasers solely on the ground that it was not founded on a valuable consideration." (2 R.S., 137, § 4.) It is a circumstance bearing upon the question of fraud, and, in connection with other circumstances, may establish it. It was settled in this State before the statute, contrary to some earlier decisions, that a voluntary conveyance, by a person indebted at the time, was not by intendment of law fraudulent as to existing creditors. ( Seward v. Jackson, 8 Cow., 406.) The statute then declared the rule in the language which has been quoted, with the additional provision that the question of fraudulent intent should be deemed a question of fact and not of law. (See Babcock v. Eckler, 24 N.Y., 632; Dygert v. Remerschnider, 32 id., 636.)
The action is founded upon the allegation that the conveyance by Mr. Burnham was made with intent to hinder, delay and defraud his creditors. There is no finding upon this question, or any request to find upon it.
We are asked to reverse the judgment for the reason that the finding of a consideration for the conveyance was not warranted by the proof, and for the further reason that on looking into the evidence it will appear that the conveyance was, in fact, fraudulent. The absence of a consideration, as has been shown, does not alone authorize a judgment for the plaintiff, and it is the settled doctrine in this court, which has frequently been declared, that the party who seeks to reverse a judgment rendered upon the report of a referee, upon the ground that it was not warranted by the facts proved, must procure a finding of facts upon the questions upon which he relies, and the court, when there are no findings upon the question presented, will not look into the evidence to see whether facts were proved which, if found, would subvert the judgment. ( Fabbri v. Kalbfleisch, 52 N Y, 28; Pratt v. N.Y. Cent. Ins. Co., 55 id., 505, and cases cited.)
We are therefore of the opinion that the judgment should be affirmed.
All concur; MILLER, J., concurring in result.
Judgment affirmed.