Opinion
Argued May 12, 1881
Decided May 31, 1881
C.B. Sedgwick for appellant.
O.D.M. Baker for respondent.
The point upon which the appellant relies is that at the time of the receipt by George E. Wing from the guardian of his wife, of the $1,366 which she inherited from her father, he gave no obligation to settle the fund upon his wife or secure it to her. That it became his property, by virtue of his marital right (he having received it before the married woman act of 1848) and consequently the mortgage which thirty-three years afterward he gave to her for that money, and the interest thereon, had no consideration, legal or equitable, to support it, but was void as against his creditors.
The judge before whom the trial was had, found that George E. Wing received the money about the 1st of May, 1844, and applied it to the purchase of a farm, to which he then took the title in his own name, but that, from time to time thereafter, the money was spoken of by and between him and his wife as money belonging to her, and that, prior to any liability to the plaintiff or its predecessor in interest, George E. Wing had promised to his wife to execute to her a paper to show for said money, but no such paper was executed until 1878, when the mortgage in controversy was given for $4,611.32, being the $1,366 and interest from 1844.
The judge further found that after 1848 Caroline Wing, the wife, received other sums of money in her own right which she invested in the purchase of a mortgage for $1,400 upon the premises in question, which premises were afterward conveyed to her in payment of her two mortgages, but subject to another mortgage for $2,200 executed by George E. Wing to his father; and the judge finds that the said conveyance to Caroline Wing was fairly and honestly made, and without any intent to cheat or defraud the creditors of George E. Wing.
The counsel for the plaintiff contends that the finding that the money paid to George E. Wing, by the guardian of his wife, in 1844, was, from time to time thereafter, spoken of between the husband and wife as her money, and that the husband, before becoming indebted, promised to give her a paper to show for it, is founded on a misapprehension of the testimony; that these conversations related to the moneys she received after 1848, and that there was no recognition of her right to the money received in 1844, until the giving of the mortgage in question, which was in 1878, shortly before the recovery of the plaintiff's judgment. We have examined the testimony with reference to this point, and do not find it so clearly made out as to justify us in holding that the finding of the judge is wholly unsupported. George E. Wing was examined as a witness on the part of the plaintiff, but his memory was very feeble, and, although he testified that he at one time gave his wife a note for the money received from her father, the judge did not find in accordance with his testimony in that respect. Mrs. Wing, however, testified that in the spring of 1844 she got $1,666 from her father's estate, and that she used $300 of it and the rest went to Mr. Wing, or went to pay for the farm. That up to the 14th of May, 1844, she was a minor. That the estate was settled up on the 1st of May, and from that time there were conversations between herself and her husband with reference to that money, to the effect that the money was hers and she should have it; and the matter stood in that way until the mortgage was given in 1878 for the $1,366, and interest from 1844. On cross-examination she was unable to specify particular conversations, but reiterated the statement that all along through her life they had talked of her having so much money from her father's estate, and that her husband always claimed that she should have her money. The testimony is not very clear and satisfactory, but we think it is sufficient to sustain the finding of the judge, that the $1,366 was always acknowledged to be hers and to authorize an inference, in support of the judgment, that the money was obtained by the husband as her money, under some arrangement or understanding between the parties that it should be secured to her. Her right to the $1,400 mortgage, which formed part of the consideration for the conveyance, is not assailed, and, upon the whole case, we think the questions involved resolve themselves into questions of fact upon which the conclusions of the court below are final. If the money was received by the husband as his wife's, and to be accounted for or secured by him to her, he waiving his marital rights thereto, she had an equitable right to the fund, sufficient to sustain the mortgage which he subsequently gave to secure it, and the mere lapse of time would not invalidate the security. ( Woodworth v. Sweet, 51 N.Y. 9; Jaycox v. Caldwell, id. 395; Babcox v. Eckler, 24 id. 623; McCartney v. Welch, 51 id. 626; 1 Bishop on Married Women, § 119.)
The question of intent to defraud was purely one of fact, and was determined in favor of the defendant. The only ground of appeal which can be urged here is that the conveyance sought to be set aside was without consideration, and, therefore, a voluntary conveyance, void in law against existing creditors. It must be remembered that this action is brought, not simply to set aside the $4,600 mortgage, but to set aside the deed from George E. Wing, dated Sept. 24, 1878, upon the allegation that there was no consideration for the deed. This allegation is not sustained in any aspect of the case. Throwing out of view entirely the $4,600 mortgage, there was still a consideration for the deed, viz., the Griffin mortgage of $1,400, which is not assailed, and which, with interest, amounted to over $2,500. The value of the land is found to have been $5,700. It was subject to the mortgage to John Wing, amounting to $2,200, and accrued interest, and also to the dower right of Caroline Wing. If the Griffin mortgage were the only consideration it would be sufficient to sustain the deed in the absence of fraud, and there was no such gross inadequacy of consideration as to be conclusive evidence of fraud. The value of Wing's equity of redemption, subject to his wife's dower and his father's mortgage, did not greatly exceed the $2,500 and upwards due on the Griffin mortgage.
The judgment should be affirmed.
All concur, except FOLGER, Ch. J., taking no part; ANDREWS, J., absent.
Judgment affirmed.