Munoz v. Wilson

• Decision Date: 27 November 1888
• Citation: 18 N.E. 855,111 N.Y. 295
• Parties: MUNOZ v. WILSON et al.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 295

18 N.E. 855

MUNOZ

v.WILSON et al.¹

Court of Appeals of New York.

November 27, 1888.

Appeal from supreme court, general term, Second department.

Action by Eliza A. Munoz, as administratrix of one Mrs. Clay, deceased, against George Wilson and others, to foreclose a mortgage. Judgment for plaintiff was affirmed by the general term, and defendants appeal.

Josiah T. Marean, (W. B. Maben, of counsel,) for appellants.

Wm. T. Gilbert, for respondent.

RUGER, C. J.

Michael K. Wilson was on February 2, 1878, the owner of the lands described in the complaint, and on some day subsequent thereto, and prior to February 14th, executed and delivered to the defendant George Wilson a deed of such property, and the grantee thereupon entered into possession and collected rents derived therefrom. The case does not show that any consideration was paid upon this transfer; but the trial court found, upon sufficient evidence, that the deed was executed and delivered by the grantor without consideration, and with intent to hinder, delay, and defraud the creditors of M. K. Wilson; and further found, at defendant's request, that it was ‘upon a verbal, invalid, and not enforceable trust, to hold the same for the benefit of M. K. Wilson, and to dispose of the same as he might be directed by said’ Michael. The latter, being indebted to Mrs. Clay in the sum of $8,500, as found by the trial court, procured George Wilson to execute the mortgage in suit to her on October 2, 1879, and it was duly acknowledged December 27th, and recorded on December 31st of the same year. This mortgage, after execution, was delivered by George to Michael, and was by him caused to be recorded upon the day stated. The court found that the mortgage was delivered to the plaintiff's intestate, and also found, at defendants' request, that the defendant George Wilson delivered the mortgage ‘into the hands of said M. K. Wilson, with authority to deliver the same to plaintiff's intestate, but never himself delivered the same to the plaintiff's intestate.’ It appeared that Mrs. Clay died on February 16, 1880, within a few weeks after the mortgage was received by Michael K. Wilson, and probably before sufficient time had elapsed to enable the register to record and return it to Michael. The court refused to find that no bond was executed by George to accompany the mortgage, but it appeared by the uncontradicted testimony of the mortgagor that such was the fact. No copy of the mortgage appears in the record, but on the oral argument made by the appellants' counsel, in the absence of the respondent's counsel, who submitted the case upon a printed brief, we were furnished by the former with an exemplified copy thereof; and although such copy could not, under well-settled rules, be properly received and used for the purpose of reversing a judgment, the appellants cannot complain if we consider it for the purpose of supplying the defects in the case caused by the neglect of the parties to print it therein. Day v. New Lots, 107 N. Y. 157, 13 N. E. Rep. 915. This mortgage recites, among other things, that ‘the said George Wilson is justly indebted to the said party of the second part in the sum of eight thousand five hundred dollars lawful money of the United States of America, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of seventeen thousand dollars lawful money as aforesaid, conditioned for the payment of the said first mentioned sum of eight thousand five hundred dollars, on the 2d day of October, 1881, and the interest thereon to be computed from the day of the date hereof, and after, at the rate of six per centum per annum, and to be paid semi-annually therefrom, and thereafter, as by the said bond or obligation, and the condition thereof, reference being thereunto had, may more fully appear;’ and it was further provided therein that ‘the said George Wilson, for himself, his heirs, executors, and administrators, does covenant and agree to pay unto the said party of the second part, her executors, administrators, or assigns, the said sum of money and interest as mentioned above and expressed in the condition of said bond.’ It further appears by the case that George Wilson, about the time of receiving the deed from Michael K. Wilson, executed a deed of the same property to Eliza, the wife on Michael K., as grantee therein, and delivered it to Michael, who retained it in his possession until after October 4, 1881, when he caused it to be recorded. The trial court found that this conveyancewas also made without consideration, and with intent to hinder, delay, and defraud the creditors of Michael K. Wilson, and did not become operative as a deed until after the delivery of the mortgage in suit.

Several alleged grounds of error are urged by the appellants as cause for the reversal of the judgment rendered in the courts below in favor of the plaintiff, which, so far as they are material, will be noticed in the course of the opinion. Among other things, it is claimed that the testimony of Michael K. Wilson should have been credited by the trial court, and the facts, so far as they are testified to by him, should be taken as undisputed, and presenting questions of law for the consideration of the court on appeal. The findings of fact by the trial court show that credit was not unconditionally given to such evidence, and we are of the opinion that the court did not err in that respect. Not only was such testimony more or less in conflict with the legal presumptions arising from the acts and admissions of Michael and the defendant George, but it was given after the death of the adverse party in interest, and under the influence of a stong pecuniary interest in the controversy. His testimony was also in several material respects contradicted by that of other apparently disinterested witnesses, and subject to the discredit which attaches to a person engaged in a scheme to defraud his creditors. Abundant reason, therefore, existed for the suspicion with which the trial court regarded his evidence, so far as it tended to promote his own interests. Indeed, the mere fact that a witness is the real party to an action, and interested in its result, has been deemed sufficient to require its credibility to be submitted as a question of fact, and more especially so when the testimony is improbable in itself, or inconsistent with other circumstances of the case. Honegger v. Wettstein, 94 N. Y. 252;Elwood v. Telegraph Co., 45 N. Y. 549;Kavanagh v. Wilson, 70 N. Y. 177;Gildersleeve v. Landon, 73 N. Y. 609. There is therefore no reason in the assault made upon the judgment growing out of any fact testified to by Michael K. Wilson alone. The trial court could, in the exercise of its discretion, properly discredit the whole or such portions of his evidence as it disbelieved, and give credit thereto only so far as it deemed it in harmony with other facts and circumstances of the case.

It is also urged that the non-production of a bond by the plaintiff on the trial is fatal to her right to recover, and we are cited to the case of Bergen v. Urbahn, 83 N. Y. 49, as authority for this proposition. We think, under the facts above referred to, the case cited is an authority for the plaintiff. The learned judge writing the opinion in that case, referring to and approving the case of Goodhue v. Berrien, 2 Sandf. Ch. 630, says: ‘There the mortgage was given to secure sundry liabilities incurred for the mortgagor. This appeared by its terms, and, although it also referred to a bond, it was proven that no bond was in fact given. The case now in hand contains neither of these facts.’ It is only, we think, when a bond is shown to have accompanied a mortgage, and contains the only apparent evidence of the debt to which the mortgage is collateral, that it must be produced, or its non-production accounted for, on the trial. The theory upon which this is required is that the possession of the collateral security alone furnishes no conclusive evidence of the ownership of the debt secured thereby, as it is the mere incident of the bond, and, non constat, the bond may have been transferred to another party, who, in that event, would be entitled to the possession of the collateral security. Merritt v. Bartholick, 36 N. Y. 44;Langdon v. Buel, 9 Wend. 80...