#### Noyes *v.*Morris *et al.*

*(Supreme Court, General Term, Third Department*

May 26, 1890.)

L Fraudulent Conveyances—Sufficiency of Evidence.

That a conveyance for an expressed valuable and adequate consideration was made two days before the grantor executed a general assignment for the benefit of creditors, that she on the same day conveyed other property to third persons, and that, several months before the assignment, she gave notes aggregating a large sum, constitutes no evidence of fraud on the part of the grantee.

2. Same—Declarations of Grantor.

In a suit to set aside a conveyance as fraudulent, evidence as to the acts and declarations of the grantor after the execution of the deed was properly excluded, as against the grantee, when there was no proof of a conspiracy between them, and no evidence that the grantor was still in possession at the time.

*5628. Trial—Findings op Fact.

The decision of the court in an equity cause which is tried without a jury, that, upon the whole evidence plaintiff fails to make out a case, and its judgment dismissing the complaint, constitute substantially a finding of the facts.

Appeal from special term, Albany county.

Action by Levi S. Hoyes against Abram Y. Morris, Robert Pelthousen, and others. Plaintiff appeals from a judgment dismissing his complaint.

Argued before Learned, P. J., and Landon and Mayham, JJ.

*B. F. Bullard,*for appellant. *M. L. Stover,*for respondents.

Mayham, J.

Appeal from a judgment entered upon the dismissal of the plaintiff’s complaint at the trial. The action was brought to set aside certain deeds of conveyauce of real estate, made by Adam W. Kline and Bata A. Kline to Abram Morris, and by Morris to Robert Pelthousen; also to set aside a general assignment by Bata Ann Kline to Julius Wasserman for the benefit of creditors. On the trial the plaintiff put in evidence a deed from Bata A. Kline and Adam W. Kline, her husband, to Abram V. Morris, dated December 8, 1883, conveying the premises described in the complaint, reciting a consideration of $15,000, and subject to a mortgage of $2,500. Plaintiff also read in evidence the record of a deed dated December 8, 1883, from Bata A. Kline and Adam W. Kline, her husband, to Thomas Liddle, conveying the factory property iniAmsterdam, reciting a consideration of $40,000, subject to a mortgage of $25,000 to be deducted from consideration as expressed. Plaintiff also puts in evidence an assignment for the benefit of creditors, executed by Bata Ann Kline to Julius Wasserman, dated December 10,1883, which directed the assignee to pay the debts of the assignor in classes as therein specified. The plaintiff also put in evidence three judgments against the defendant Bata A. Kline in favor of John Consalus, one entered July 24, 1883, for $2,762.26, on which an execution had been issued, and returned unsatisfied January 24, 1884; also a judgment against B. A. Kline entered January 5, 1887, on four notes, dated, respectively, August 8, 1883, September 1, 1883, September 14, 1883, and October 25, 1883. Plaintiff also put in evidence a judgment for $6,309.63, roll filed January 10, 1884, in favor of John Consalus against Bata A. Kline, being for the amount of four notes made by B. A. Kline, dated, respectively, September 8, 1883, September 11,1883, September 20, 1883, and September 12, 1883. The plaintiff also put in evidence an assignment, executed by John Consalus to this plaintiff of each of the above-mentioned judgments, dated July 28, 1883. The plaintiff also read in evidence a deed from A. V. Morris to the defendant Pelthousen, dated April 22, 1884, recorded May 17, 1886, conveying the premises described in the complaint, expressing a consideration of $15,530. The plaintiff also put in evidence the testimony of Bata A. Kline taken before a referee in proceedings supplemental to execution, February 24, 1884. This evidence was objected to by the defendant, and received by the court against Mrs. Kline only. There was some evidence given by the plaintiff tending to show that the premises conveyed to Morris were worth at the time of the conveyance $22,000 to $23,-000. The plaintiff upon this evidence rested his case. The defendant’s counsel moved to dismiss the complaint upon the following grounds: *First,*that there was no evidence of fraud on the part of any one in the transaction.; *second,*that the plaintiff had failed to prove any facts upon which fraud could be predicated; *third,*that plaintiff had failed to prove the cause of action set forth in the complaint; *fourth,*that there was not sufficient evidence on the question of fraud to authorize the submission of the question to the jury; *fifth,*that the plaintiff had no right to maintain the action; *sixth,*that under tie statute of 1858 this action could only be maintained by the assignee. The court'held that there was no evidence of fraud, and declined to rule that the *onus*was upon Pelthousen to show that he purchased in good faith, and *563that the fact that there was no change of possession throws the *onus*upon, the grantee. The court held that there was no evidence in the case to show that he did not purchase in good faith, and declined to hold otherwise, and dismissed the complaint. There was no request to submit the question of fraud to the jury, but the plaintiff requested the court to rule and decide that, if Mrs. Kline intended to commit a fraud by giving the deed, the *onus*was upon Morris and Felthousen to show that they bought in good faith.

So far as we can see, there was no evidence offered in the case that could sustain the allegation of fraud, if we exclude the testimony of Bata A. Kline, taken before the referee on proceedings supplemental to execution. That evidence was excluded, except as against her, and was not before the court for consideration as against the grantees, and it is therefore insisted by the plaintiff that its exclusion was error. The rule seems well settled that the acts or declarations of a grantor after the grant, in the absence of proof of a conspiracy between the grantor and grantee or assignee, are not competent as against the grantee or assignee in possession, to invalidate the grant or assignment. In *Cuyler v. McCartney,*40 N. Y. 226, the court of appeals, by Woodruff, J., uses this language: “I concur fully in the proposition that, after the execution and delivery of an assignment for the benefit of creditors, and the entry of the trustees upon the performance of the trust, * * * the assignor cannot, by his declarations or admissions out of court, invalidate the assignment. ** *** On such evidence the assignees may legally say, as to us, the allegation is wholly unproved.” Declarations of a vendor after sale and delivery of possession are not competent evidence against a vendee in an action wherein the sale is attached for fraud. *Burnham*v. *Brennan,*74 N. Y. 597. See, also, *Jacobs*v. *Remsen,*36 N. Y. 670. Declarations of parties at the time of a transaction are usually receivable as part of the *res gestee.*But declarations of one of the parties at another time, and in the absence of the other, are not admissible. *Ogden*v. *Peters,*15 Barb. 562. “All the cases agree that declarations made by the person under whom the party claims, after the declarant has parted with his rights, are utterly inadmissible to affect any one claiming under him.” Phil. Ev. (1 Cow. & H. Notes,) note 194, subd. 3. This rule seems so universal as not to require further citations of authorities. It is elementary, and founded upon most obvious reason and propriety. To this rule there is an exception when the grantor remains in possession; after the grant, his declarations are sometimes competent to prove fraud. But before such declarations can be received for that purpose, it must appear distinctly that the declarant is an occupier at the time. *Den*v. *Pickett,*3 Dev. 6; Phil. Ev. (1 Cow. & H. Notes, 275.) This is not in conflict with *Loos*v. *Wilkinson,*110 N. Y. 210, 18 N. E. Rep. 99. In this case plaintiff was permitted to prove declarations of the grantor while in possession, the possession being established beyond question, and that rule was sustained on appeal. B ut the court put their ruling expressly upon the ground that at the time of *the*declaration the grantors were in possession, and the deed was purposely kept from record. In the case at bar no such facts are proved. The allegations in the complaint that the grantor retained the possession of the premises after conveyance are denied in the answer, and the plaintiff offered no evidence upon that subject, except that of witness Flansburgh, who says: “They continued to occupy the same for several years, I think. ” This evidence does not come up to the rule as laid down in *Den*v. *Pickett, supra.*Nor is it sufficient to bring the case within the rule stated in *Loos*v. *Wilkinson,*above cited. If the above conclusions are correct, then the evidence fails to establish fraud, and the plaintiff could not legally recover.

This brings us to the consideration of the remaining question raised in this action: Had the judge in this class of cases a right to dismiss the complaint summarily upon the trial, or should he have formulated findings of facts and *564conclusions of law, upon which a decree could have been entered ? The action was purely an equitable action, and all the relief asked for was of an equitable nature or character. It was therefore an action triable by the court, and neither party was entitled to a trial by a j ury. *MacNaughton*v. *Osgood,*114 N. Y. 577, 21 N. E. Rep. 1044; Code Civil Proc. § 968. The questions of fact arising upon the issue might have been directed by the court to be tried by a jury, (Id. § 971,) but no issues were framed and no questions formulated for the jury; aud, even if the issues had been framed and heard by a jury, the court would have been called upon to pass upon, and might have adopted, rejected, or modified, their verdict. In such case the action would have to be brought to a hearing be-' fore the court, and the decision made in writing in the same manner as if there had beenno verdict of the jury on the issue. But thepractice has been settled that where an equity case is tried by the court, with a jury impaneled for the purpose of passing upon such disputed facts as the court may submit to it, if on the whole evidence the judge determines that the plaintiff has failed to make a case, his decision dismissing the complaint is such a finding of facts, and determination of the law arising upon them, and the signing by the clerk was a substantial compliance with the provisions of section 1022 of the Code of Civil Procedure. In *Rousseau*v. *Bleau,*8 N. Y. Supp. 824, the court, Landon, J., in discussing this question, uses this language: “The signature of the clerk is the signature of the court. The judgment is equivalent to a finding of fact by the court that the testimony adduced by the plaintiff did not, taken in the aspect most favorable to him, establish the case alleged in his complaint. It is also a finding that the court did elect not to submit any question to the jury. The direction for judgment finds that on the merits the plaintiff is not entitled to recover. If the court had awarded affirmative relief, it would have been proper to have made out a decision setting forth the facts, from which the direction of judgment would follow as the necessary legal conclusion. But the necessity for settling forth findings of inconsequent facts, and then formally finding as a conclusion of law thatthey are inconsequent, is not so obvious. We think that the judgment signed by the clerk, in a case in which the result is a dismissal of the complaint upon the merits, a sufficient compliance with section 1022. The case of *MacNaughton*v. *Osgood*does not hold otherwise. There is no difficulty in, reviewing upon appeal such a case.” It will be seen that the proceedings of the trial court upon this point were not irregular, and that a valid judgment might be entered upon the decision of the trial judge dismissing the complaint, in an equity action. The judgment must be affirmed, with costs.