Radley v. Riker ( 1894 )

BROWN, P. J.

This action was brought to set aside two deeds which transferred to the appellant, from her husband, William H. Riker, real estate in Dutchess county. The deeds were dated in July, 1891, and the evidence clearly established that at that time William H. Riker was owing large amounts of money, and was insolvent. No consideration was paid by the grantee in either deed, but the appellant sought to sustain them by evidence that the property in question was acquired by the husband in exchange for property situated on Sixty-Eighth street, in Hew York, and that when such exchange was under discussion she refused to execute the deed, and that it was thereupon agreed that, in consideration of the release by her of her inchoate right of dower in the Hew York property, the Dutchess county property should be transferred to her, subject to a mortgage of $5,000. The trial court refused to find that such an agreement was made, and this finding is supported by the testimony. The interest of the appellant and her husband in the result of the trial was such as to make the credibility of their testimony a subject for the consideration of the court, and we are not disposed to disturb its conclusion. The only other testimony on the question was that of Mr. Williams, the grantor of the property in question. His testimony was as follows: That at an interview with Mr. and Mrs. Biker at their home, prior to the sale, “Mrs. Biker seemed to object to the exchange, and he [the husband] told her, if she would consent, he would give her the deed of the Miller ton property. Q. And she assented to it at that time? A. I don’t know as she did at that time. I gave the deed to the husband. Q. How came it that you made the deed to him? A. I suppose he asked me to. I made it as he required it.” This evidence, while it corroborates the appellant to some extent, did not show that an agreement was made; and the fact that the title was taken by the husband, and remained in him for upwards of a year, and until he became insolvent, was strong evidence that the conveyance was not made for such consideration. After the exchange was made, and prior to the conveyance to the appellant, her husband had contracted large obligations, among which was that upon which the judgment held by the plaintiff was recovered; and Mr. G-renough, one of the firm, with whom he had contracted, was informed by him that he was the owner of the property in suit. The circumstances all tended to contradict the appellant’s claim, and we are of the opinion that the conclusion of the court is amply sustained by the evidence.

The appellant also contends that a consideration for the deed exists in an agreement upon her part to remove from the city, and live with her husband in Dutchess county. That fact, if true, would not constitute a legal consideration, and would not sustain the deed, against the claim of creditors. The judgment must be affirmed, with costs. All concur.