Demarest v. House , 98 N.Y. Sup. Ct. 290 ( 1895 )

PRATT, J.

This is an appeal from a judgment in an equity action entered upon a dismissal of the complaint at a trial at special term.. Isaac E. House and Melissa House were husband and wife, and, prior to December, 1893, had lived together in Hyack. The relations between Isaac E. House and his wife for years had been unfriendly, and this fact was not concealed. After the death of the father, which occurred in August, 1891, there were negotiations between these parties, with the assistance of their respective attorneys, looking towards some settlement of their differences, and some" provision for the support-of the wife and child. • While these negotiations were, still pending, Isaac E. House suddenly left Hyack. and has never returned. After his departure, an action for limited divorce was commenced by his wife, and summons served upon her husband by publication. She applied in the meantime for temporary alimony, and this, as well as a moderate counsel fee, were awarded her by an order of this court. Subsequently, on showing-inability to collect this alimony, the court appointed the plaintiff a receiver of the property of her husband. Prior to the time of his leaving Hyack, Isaac E. House was the owner of certain real estate, consisting of a house and lot on West Thirty-First street, in Hew York City, a house and lot on Burd street, Hyack, and a house and lot on Franklin street, Hyack. These properties were, at the time of the death of the father, unincumbered, and were producing a revenue. On the 6th of December, 1893, it appears that Isaac E. House executed a deed of the Hew York property, to the defendant William H. Bleeker, his cousin by marriage, and took back from him a mortgage for $8,000; and on the 15th of December he executed a deed of his Hyack properties to James R. Comesky, brother of his attorney, who executed two mortgages thereon,—one to Hannah B. Wool for $1,200, and one to Isaac E. House for $1,500. After the receiver was appointed, he attempted to collect the rents of" this property, and failed, because of the fact that the tenants had been instructed to pay rent to the parties who had the deeds. . He then applied for leave to bring this action to set aside those conveyances, as having been made in fraud of the rights of Melissa House, or, in the event of the inability to set aside the deeds, to impound the mortgages given back to Isaac E. House at the time of the transfer. • The $8,000 mortgage upon the Hew York property. with the bond, were in the possession of Isaac E. House. He also had the bond of $1,500, made by James E. Comesky. The mortgage to secure this bond is in the possession of the plaintiff as receiver, having been obtained by him of the clerk of Eockland county, with whom it had been left.

At the time the conveyances were made to the defendants, no suit had been commenced for a separation, and there is no proof that either defendant knew or suspected that any such suit was to be brought; neither is there proof that either defendant did not pay a fair price for the property. Assuming, even, that the motive of Isaac E. House in making the sales was to prevent his wife from •receiving any alimony in any suit she might commence therefor, that fact would not invalidate the sales, unless the fact wras known to the grantees, and they participated in the fraud. It is not necessary to discuss the other questions raised by the appellant, as there was an utter failure of proof to impeach the transactions, or to show that defendants were not bona fide purchasers.

The fact that the wife did not sign the deeds, under the circumstances, is not a material fact to put the defendants upon inquiry as to the right or motives of the husband to make the conveyances. It does not appear from the case that any other relief was demanded upon the trial than that the deeds should be set aside as fraudulent.

Judgment affirmed.