Herschfeldt v. George

• Decision Date: 08 June 1859
• Citation: 6 Mich. 456
• Court: Michigan Supreme Court
• Parties: Moritz Herschfeldt v. Paul J. George and another

6 Mich. 456

Moritz Herschfeldt v. Paul J. George and another

Supreme Court of Michigan

June 8, 1859

Heard November 18, 1858; November 19, 1858 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal in chancery from Wayne Circuit.

The bill was filed against Paul J. George, Sally George (his wife), and John George; and sets forth, that on September 1st, 1852, Paul J. George, being indebted to complainant in $ 1,866.61, gave complainant therefor three promissory notes, due in four, six, and seven months from date; that on March 24th, 1853, complainant caused an attachment to be issued from the Circuit Court for the county of Wayne against the property of said Paul, on the first two of said notes, which attachment was served by attaching lot 61, on the Lambert Beaubien farm, on Jefferson avenue, Detroit, and also a part of lot 3 of subdivision of private claim number 19, being in Hamtramck, Wayne county, and was also served personally on the said Paul; and that on September 22d, 1853, judgment was rendered for complainant in the attachment suit, for $ 1,015.07 and costs of suit; that on April 5th, 1853, complainant commenced another suit by attachment, on the third note, in which the same property was attached, and judgment rendered therein July 1st, 1853, for $ 920.53 and costs of suit; that executions were issued on said judgments, December 9th, 1853, and levied on said premises.

The bill further sets forth that on March 17th, 1852, said Paul was the owner in fee, jointly with John George, of the said premises, and on that day said John and wife conveyed to Paul the west half of said lot 61, and the east half of the Hamtramck lot; that on August 23d, 1851, said Paul and Sally, for the nominal consideration of $ 2,000, conveyed to one Henry Train the west half of said lot 61; and that on July 8th, 1852, Train and wife, for the nominal consideration of $ 400, conveyed the same, by deed of warranty, to said Sally; that on August 2d, 1851, said Paul and Sally, for the nominal consideration of $ 500, conveyed the Hamtramck lot by warranty to Henry Zender, who, on the next day, for the nominal consideration of $ 1,000, conveyed the same to the said Sally; that at the time of making said conveyances to Train and Zender, as complainant is informed and believes, said Paul was largely indebted in New York and elsewhere, and utterly insolvent; and that said conveyances were without consideration, and made for the purpose of defrauding the creditors of said Paul, and of preventing them from collecting their debts, and in secret trust that the lands should be conveyed to said Sally, to keep them beyond the reach of such creditors.

He further alleges that at the time of contracting the indebtedness for which said judgments were rendered, said Paul represented to complainant that he was still the owner of said premises, and it was upon the faith of such representations that complainant trusted him; that on January 31st, 1853, said Paul, with a view further to defraud creditors, gave to John George a mortgage for $ 1,779.19 on said premises, which is charged to be without consideration.

And complainant prays that said conveyances to Train, Zender, and Sally George, and said mortgage, may be declared void as to the creditors of said Paul, and as against the lien of said executions.

Each of the defendants answered the bill separately, but John George having died pending the suit, the bill was voluntarily dismissed by complainant as to his representatives.

Complainant afterwards amended his bill by charging said several conveyances to have been made with a view to defraud subsequent creditors; and further, that in August and September, 1852, said Paul fraudulently contracted debts to the amount of nearly $ 10,000, including that to complainant, and that in January, 1853, he became so entirely insolvent that he made a general assignment for the benefit of creditors, showing assets to the nominal amount of $ 4,000, and debts to over $ 11,000.

The answer of Paul George admits the conveyances to Train and Zender respectively, and by them respectively to Sally George, and that the considerations named in the deeds were only nominal. Denies all the allegations in the bill as to the conveyances being made to defraud creditors, or upon fraudulent trusts, or to shield the property from attachment or levy. It then avers that on the 10th day of March, 1842, Charles Moran conveyed lot 61 to David and John George, as tenants in common, and on the 14th of the same month David conveyed to this defendant; that defendant and John procured the lot for the express purpose of building dwelling-houses thereon, to be occupied by themselves and families, as homesteads; they agreeing between themselves that defendant should have for his own the west half and John the east half of the lot; that each erected on his respective half a dwelling-house; that defendant moved into his in the autumn of 1842, and removed therefrom in the fall of 1853, and then only for a temporary purpose, and with the intention of returning; that from time to time prior to 1851, Sally George, his wife, importuned him to vest said west half in her as a homestead, and he promised to do so, but delayed until August, 1851, when in order to carry out that purpose, he joined in the deed to Train; that at the time of making said deed defendant proposed making one for his half only of said lot, but it being suggested that of record the lot stood in him and John in common, and being advised that a quit-claim of the whole would convey his interest, and that on the interchange of deeds between himself and John, Train could then deed the west half to Sally George, he gave a quit-claim accordingly. He avers that, though he had determined to vest in his wife the said west half of lot 61 as a homestead, yet she, as an additional inducement thereto, offered to allow him to receive from Train, who was administrator on the estate of her deceased father, the sum of four hundred dollars, due her from said estate, and that he actually did receive the same, and expended it in and about his business.

Defendant further says that he and John, being on unfriendly terms, no communication was had between them until March 17th, 1852, at which time John and his wife deeded the west half of lot 61 to defendant, and defendant and his wife deeded the other half to John, in pursuance of said verbal partition; that Train and wife afterwards deeded said west half to said Sally; and that at the time of the partition between himself and John, when he chose and had said west half of lot 61 as a homestead, its value did not exceed $ 1,500. And he claims that the deed from himself and wife to Train, and from Train and wife to said Sally, was an appropriate way of fixing a homestead under the laws of the state, but that even if they were void, he is still entitled to claim said premises as a homestead under the statute.

He further says the deeds between himself and John, of the Hamtramck land, were also executed in pursuance of a previous parol agreement for partition; that at the time of the deed to Zender, defendant had received a severe bodily hurt, and was in danger of not recovering; that his wife and some of his friends urged upon him that it would be right to fix in his wife the title to said Hamtramck land, and he did so--the conveyance to Zender being for that purpose. And he denies that that conveyance was made to defraud creditors; he alleges that at that time he was only indebted to his brother John, and to one or two others in small amounts; that he had sufficient assets, open, visible and to be reached, to pay off every creditor and debt without any reference to said real estate; that after said deeds were executed, by a series of unforeseen losses, he failed in business, and became unable to pay his debts. He denies the false representations charged against him in the bill; and denies all fraud or illegality, actual or intended, and any purpose to defraud any creditor whomsoever.

The answer of Sally George contains substantially the same averments as that of her husband. She claims that, ever since the conveyance of said west half of lot 61 to her, she has held and possessed, and still holds and possesses, the same as a homestead. She says that, before the deed to Zender, her husband had been severely hurt; that he was then lying ill, and that his habits had become so intemperate that she feared he would resume them upon his recovery, and that it might lead to injury to himself and his business; that she deemed it a duty to herself and her children to secure the Hamtramck land as a means of future support; that she therefore urged her husband to convey it to some one who would convey it to her, and thus vest it in her for the purpose aforesaid; that her husband assented to this, and the deeds to Zender, and from the latter to her, were made accordingly. She denies all fraudulent intent; and says that at the time of the conveyance to Train and Zender she supposed, and still believes, her husband had property enough, independent of the lands, to pay all his debts; that she knew of no debt then of any consequence, except that to John George. And she claims, as respects the west half of lot 61, the benefit of the homestead exemption.

Replications being filed to these answers, proofs were taken as follows:

Henry Zender proved the assignment of Paul George to himself, for the benefit of creditors, showing assets amounting to about $ 4,000, and debts to upwards of $ 9,000, not including the demand of John George. He testified that he took possession of the assigned property, but was only able to realize some $ 500...