#### Mary McC. Hastings, Resp’t, *v.*John Claflin *et*al., App’lts.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

1. Debtor'and creditor—Preferences.

A debtor has the right to prefer one creditor over another even though the effect be to prevent the other from collecting his debt.

2. Indemnity—Liability of indemnitors.

Indemnifying a sheriff to induce him to sell property upon execution is a sufficient participation in the act, if illegal, to make, the parties giving the bond liable to the party injured thereby.

Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the judge.

The action was for trespass in wrongfully taking personal property. The defense sets up title in a judgment debtor of the defendant, and justified the seizure under an execution on the judgment and alleges that the transfers through which the plaintiff claims are fraudulent

*Michael A.*Quinlan, for app’lts; *S. W.*Jackson, for resp’t.

Mayham, J.

The plaintiff, at the time of the taking of the property, was in possession and claimed title to the same, derived by her through transfers as follows: On the 2d of April, 1889, Mary Linn, plaintiff’s mother, recovered a judgmént against James Hastings, plaintiff’s husband, for the sum of $1,755.87, which, on the 2d of April, 1889, was assigned by Mary Linn to the plaintiff, who, on the 11th of April, 1889, assigned the same to B. C. Van Zant, he being at that time the creditor of James Hastings for the amount of a $200' note held by Van Zant against Hastings. On the sane day James Hastings, to secure the amount of such indebtedness by judgment and note, executed to Van Zant a chattel mortgage on the property in question, which, on the 12th day of April, 1889, was duly filed in the proper town clerk’s office. On the 11th of September, 1889, Van Zant foreclosed this mortgage and sold the property and executed and delivered to the plaintiff a bill of sale of the same, who was the purchaser on such public sale, and on such sale the plaintiff took possession of the property and retained the same until taken by the sneriff by the directions of the defendants.

The evidence tends to show that the judgment recovered by Mary Linn against James Hastings was for money loaned by Linn to Hastings in May, 1877, and as it was assigned to Van Zant it became a demand in his 1 ands which, together with the indebtedness of Hastings to him on the note, constituted the consideration for the mortgage, and made that a valid instrument in his hands against James Hastings, and the property covered by it, under which he could as against Hastings seize and soil the property and the title acquired under that sale would be valid as against him, and also as against his creditors, unless the same was fraudulent and the various transfers were made without consider - *472ation, and with the fraudulent intent and purpose of hindering, delaying or defrauding the creditors of James Hastings. There was evidence offered on the trial tending to show that Mary Linn was the executrix of her deceased husband and the mother of the plaintiff.

That as such executrix she received into her own hands about $20,000 of the estate of her testator for distribution. By the residuary clause in the will the plaintiff was entitled to an equal share of the property devised for distribution with the other children of the testator, and that without paying the plaintiff her distributive share, the executrix squandered the bulk of the estate, and in part payment or indemnity for her share, her mother,-, the executrix, assigned to her the judgment obtained against her husband, James Hastings, which was for money loaned to him out of the funds held by the executrix belonging to the estate.

In consideration of the assignment of this judgment to her, the plaintiff released her mother, the exectitrix, from all claims against her as executrix or against the estate she represented.

On the 10th day of June, 1889, the defendants recovered a judgment against James Hastings, impleaded with Charles F. Linn and Mary Linn, for $1,049.35, the roll whereof was on that day filed in the office of the clerk of the city and county of New York, a transcript of which was duly filed and the judgment docketed in the office of the clerk of the county of Albany on the 6th day of August, 1889, on which an execution was on the 27th day of March, 1890, issued to the sheriff of the county of Albany, where the property in controversy was, under and by virtue of which the sheriff of Albany county levied upon such property, which he afterwards advertised, and on the 9th day of April, 1890, sold to satisfy the execution.

We think the facts in this case establish the legal title to the property in the plaintiff unless the transfers through which it was acquired were fraudulent and void as to creditors of James Hastings, and that the determination of the question of fraud from the evidence was one for the jury, and unless their determination was unsupported by the evidence, or was clearly against the’ weight of evidence, then the trial judge was right in refusing to set aside the verdict and grant a new trial upon the minutes. It is true that if the uncontradicted evidence had established a fraudulent transfer in law, so that by the undisputed facts the transfers through which the plaintiff acquired her title were fraudulent in law, then the court should have declared it void, as that would amount to a complete legal defense which the jury would not be at liberty to disregard, *Algeo*v. Duncan, 39 N. Y., 313,. but that is not this case.

The most that could be claimed for the evidence is that the jury might have so construed it as to raise an inference of fraud, and the jury having found for the plaintiff, that presumption is negatived. While it is the plain duty of the court, where the verdict is palpably against the law, applied to. the facts found, *McDonald*v. Walter, 40 N Y., 553, to set aside a verdict, the converse of the proposition is equally true that it is the plain duty of the *473court not to interfere where the law, when applied to the facts found, is in support of the verdict.

It is not denied that the court has the power where the verdict is against the weight of evidence, and in the judgment of the court justice requires that the case should be submitted to another jury, to set aside the verdict, *Dickson*v. *Railroad,*47 N. Y., 509, but as it is peculiarly the province of the jury to consider and determine questions of fraud and intent, the court should not, without clear and controlling reasons, interfere with their verdict in that class of cases. The question of the existence of an intent to hinder, delay or defraud creditors, in making a sale or transfer of property, is a question of fact for the jury. 2 R. S., 137, § 4; *Knapp*v. Smith, 27 N. Y., 280; *Kavanagh and Barron*v. Beckwith, 44 Barb., 192.

The fact that James Hastings gave the mortgage in question to pay or secure Van Zant, while it may be considered by tibe jury upon the question of fraudulent intent, is not in itself evidence from which the jury or court are compelled to find fraud.

A debtor has the right to prefer one creditor over another, even though the effect be to prevent the other from collecting his debt *Jewett*v. *Noteware,*30 Hun, 194; *Billings*v. *Billings,*31 id., 68; *Swift*v. *Hart,*35 id., 130. The fact that the defendants gave the sheriff a bond of indemnity to sell this property is a sufficient participation in the act, if a wrong, to make them parties to it, and answerable for the consequence in an action by the party injured. Giving a bond of indemnity to induce the officer to seize particular property on execution makes the party executing such bond a trespasser if the seizing be illegal. *Davis*v. *Newkirk et al.,*5 Denio, 92. Ror does the statement by the officer that he sold the right, title and interest of James Hastings relieve them from liability to the real owner if the property did not belong to him. The execution assumed to deal with the property and under it the property was sold, and passed into the hands of the purchaser. That was such an interference with it as to make the defendants liable to the plaintiff if the property belonged to her. It was not error, therefore, for the court to refuse to charge as requested by the defendant upon that subject We have examined all the exceptions taken by the learned counsel for the defendants to the rulings and decisions of the learned judge at the trial, and find no errors for which this judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., concurs; Landon, J., not acting.