Amsden v. Manchester , 1862 N.Y. App. Div. LEXIS 236 ( 1862 )

By the Court, Johnson, J.

The principal exceptions insisted upon by the defendant’s counsel are to the rulings of the referee upon questions of evidence in the course of the trial. The evidence in regard to the hotel property was admissible upon two grounds : First, to show the situation of the judgment debtor in respect to his property at the time of the transaction alleged to be fraudulent in the complaint, and what had been done with the property he had previously had. Second, for the purpose of establishing the fraudulent intent charged in the complaint. In actions involving questions of fraud, the intent is always a material inquiry, and for the purpose of establishing that, other acts of a similar character, about the same time, may always be shown.

In regard to the premises in question, the deed of the defendant James W. Manchester to Mrs. Sanderson, and also the deed of the latter to Mrs. Manchester, the wife of James W. Manchester, each purported on its face to be in consideration of $900 paid by the grantee, and the instrument was prima facie evidence that such was the true consideration, and that it had been paid. But the plaintiff had the right to rebut this presumption, and to show, if he could, that the sum specified in the respective deeds was not the true consideration, and that no such payment had ever been made by either of the grantees. For this purpose it would undoubtedly be competent to show that both grantees were married women, and that neither of them had any separate estate or property before the mating of the deed. That would be a circumstance of more or less weight, in view of the other facts and circumstances in the case, but.clearly competent as an item of evidence. And for the same purpose and in the same view, it was competent to show that the husband of Mrs. Sanderson was notoriously poor, and -that both were destitute of the means to make any such payment. This could undoubtedly be shown by the reputation of the parties in respect to pecuniary means, in the town or neighborhood where they were accustomed to reside, on the question of the bona fides or mala fides of the transaction. (C. & H. Notes, 702.) Indeed, it has been held that common reputation is the best evidence of the state of a man’s property, where the question arises collaterally.

That the evidence in this case, taken together, was sufficient to rebut the presumption of consideration and of payment afforded by the deeds, and to throw the burthen of proving the consideration and the payment upon the defendants, I entertain no doubt.

[Monroe General Term, December 1, 1862.

The case, upon the merits, was I think properly decided.

The judgment must therefore be affirmed.

Welles, Johnson and J. C. Smith, Justices.]