Francis v. Lawrence

• Decision Date: 06 July 1891
• Parties: FRANCIS et al. v. LAWRENCE.
• Court: New Jersey Court of Chancery

22 A. 259

48 N.J.E. 508

FRANCIS et al.

v. LAWRENCE.

Court of Chancery of New Jersey.

July 6, 1891.

Creditors' bill by R. P. Francis & Son and Henry Schneider against Daniel and Bridget Lawrence, to set aside an alleged fraudulent sale of real estate. Decree for complainants.

J. A. Landregan, for complainants.

Niven & Mint urn, for defendants.

GREEN, V. C. The complainants R. P. Francis & Son on February 5, A. D. 1890, issued a writ of attachment out of the Hudson county circuit court against the rights and credits, moneys and effects, goods and chattels, lands and tenements, of Daniel Lawrence, under which the sheriff, on the same day, attached a lot of land and premises in North Bergen, being property conveyed to the defendant in attachment by one John Fitzpatrick. Henry Schneider is an applying creditor under the attachment. Judgment in the action was entered in favor of the plaintiffs the said R. P. Francis & Son on the 17th day of December, A. D. 1890, for $492.50, and in favor of Henry Schneider, an applying creditor under said attachment, who has also been made a party complainant to this suit, for the sum of $320.19. This suit is brought by R. P. Francis & Son in behalf of themselves and such other creditors as may come in, to set aside a conveyance of the property attached, made by Daniel Lawrence and wife to R. J. Tallon, and by R. J. Tallon and wife to Bridget Lawrence, the wife of the judgment debtor. These conveyances are expressed to be in consideration of one dollar, and are admitted to have been voluntary, the wife saying that the object of them was to put the property in her name. The defense, as developed by the answer, is that, at the time of these conveyances, Lawrence, the grantor, was not indebted, and that he was in a position to legally and equitably make a valid gift to his wife, good as against subsequent creditors.

The deed from Lawrence and wife to Tallon is dated March 25, A. D. 1889. The subscribing witness was Charles Shangood, notary public No. 317, New York county, N. Y. It was acknowledged October 16, 1889, before Henry. A. Gaede, and received in the office of the register of Hudson county for record October 17, 1889, at 10:45 a.m. Mrs. Lawrence says that the first deed was drawn in New York by some person in Christopher street, and was signed there at the time in March when it bears date, was given to her then, and was retained by her in her possession until the other deed was made, hi October, and that its purpose was to transfer the property to her; that Mr. Gaede prepared the deed from Tallon to her; that Tallon is her brother; that all four of them—that is, she and her husband and Tallon and his wife—went down to Mr. Gaede's; that Tallon's wife's name was not inserted in a deed which had been made out, and that a new deed was drawn by Mr. Gaede, which was executed; and that they all waited there while that deed from Tallon and his wife to her was drawn, and that she then gave the deeds to her son, who took them the next day to be recorded. It is evident from this that the deed from Lawrence and wife to Tallon was not delivered or took effect until the 16th of October, 1889, and under the rule In Gardnerv. Klelnke, 46 N. J. Eq. 90, 18 Atl. Rep.457, and Hagerman v. Buchanan, 45 N. J. Eq. 292, 17 Atl. Rep. 946, these conveyances are void as against any one a creditor at that time.

The point is raised that Francis and Schneider do not stand in the position of creditors, as contemplated by the statute, because Lawrence's indebtedness was on an open account. 1 do not see the force of this contention. A man is as much a debtor with reference to his store bill as he is upon a note which he has given for a certain definite amount. To the amount that these claims were due on the 16th of October, 1889, the law presumes the conveyances attacked to have been fraudulent and void.

As to the balance, it seems unnecessary to consider what effect should be given to the fact that contracts had been made by Lawrence with these creditors prior to the 16th of October, 1889, which were at that time in course of fulfillment, and were afterwards completed; for 1 think the evidence of fraud is so clearly established that this transfer must be regarded, independent of that fact, as fraudulent as to these two creditors. This man Lawrence was a carpenter, but not in business for himself prior to March, 1889. Having a son who was a mason, and another a carpenter, he said he thought he would set up in business for...