BOOKSTAVER, J.
TMs action was brought by the plaintiff as a judgment creditor of one Diedrich Tragman, one of the defendants, to set aside a certain conveyance of two houses and lots in West 105th street, and two other houses and lots in West 124th street, in the city of ¡New York, made by Tragman to the defendant Littlefield, and have it adjudged to be fraudulent and void as to creditors, or to be in trust for Tragman and the plaintiff and his other judgment creditors. In addition to the defenses set up by the answer served before the trial, Littlefield was allowed upon the trial to amend by setting up as an affirmative defense that plaintiff recognized his title as owner of the property, and elected to ratify it. At the close of the plaintiff’s case the defendant Littlefield moved to dismiss the complaint on the ground that the plaintiff was estopped from maintaining this action by reason of the contract entered into between him and the defendant Little-field, dated May 10, 1890; and by reason of the work done under that contract by the plaintiff after- knowledge of the facts upon which he based his action; and by reason of the payments made by the defendant Littlefield to him upon the faith of his title as owner of the property, relying upon the acquiescence of the plaintiff in that title; and upon the faith of the contract entered into by the plaintiff and the defendant on the 10th May; and also on the ground that the plaintiff elected to affirm the title of the defendant Littlefield by entering into the contract of May 10, 1890, and by calling on Mr. Littlefield to go on and perform under the contract, and by himself doing work under the contract, and receiving payment under it from Littlefield, as owner of the property. After due consideration, the learned judge who tried the action granted the motion on the first of these grounds, and so fully and clearly stated his reasons for so doing that we do not see how anything can be added thereto, and we accept his reasons for so doing as our opinion upon that branch of the motion.
Although the learned judge who tried this case expressly refrained from placing his decision upon the ground of an election, yet we think the facts as they appear in this case would have warranted him in doing so. Leaving out of view what was done prior to the commencement of the action, it is evident that since [873]*873the suit was commenced, and with full knowledge of Ms rights, and before the trial of this action, he has by his continuous course of conduct in insisting upon the carrying out of Ms contract elected to affirm the deed of the 10th May to Mr. Littlefield. Election differs from estoppel, in that it is not necessary to show that one party would be injured by allowing the other party to pursue two inconsistent remedies. Many of the authorities, however, base the doctrine of election upon estoppel, and in one sense this is correct, in that it is bad faith and unfair dealing for a party to pursue two- inconsistent remedies. Bigelow, in chapter 20 of his work on Estoppel, discussing the doctrine of election, says:
“A party cannot occupy inconsistent positions; and where one has an election between several inconsistent courses of action he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the facts, determines his election, and works an estoppel.”
The estoppel, however, does not necessarily involve the idea of injury, although that element does exist in tMs case, as we think. A fraudulent transfer is merely voidable, and consequently is capable of confirmation either by assent at the time or by a subsequent ratification. Bump, Fraud. Conv. (3d Ed.) p. 464. At pages 465, 466:
“Although a creditor, is not a party to a fraudulent transfer, yet he may subsequently elect to confirm it; for any one may dispense with a provision of the law which was made for his protection. But before there can be any binding confirmation he must have notice or knowledge of the facts. If he has, however, been guilty of negligence in availing himself of information within his reach, constructive notice may be imputed to him.” “If with notice of the fraud, either actual or constructive, he makes any agreement upon consideration confirming the transfer, or any statement or agreement to that effect, upon the faith of which the grantee acts as he would not otherwise do, or under such circumstances that his subsequent assertion of his rights as a creditor, if permitted, would operate as a fraud, he will be held to have confirmed the transfer.”
In a note, 22 Abb. N. C. 268, (269,) Abbott says:
“It is an old maxim of the common law that if a man has an election to do or demand one of two things, and he determines his election, it shall be determined forever.”
Quoting from Spear, J., in Becker v. Walworth, 45 Ohio St. 169, 12 N. E. Rep. 1:
“It may be said, as a deduction from the authorities on the subject, that an election is the making of a choice between two or more benefits or rights, which estops the party from afterwards denying that an election has been made, and from demanding some benefit or right other than the one chosen.”
And in Bump, Fraud. Conv. p. 467, it is said:
“If a creditor enters into a contract with the debtor and grantee, whereby he affirms the, validity of the conveyance, he cannot afterwards impeach it.”
In Lane v. Lutz, *40 N. Y. 203, there was a voidable chattel mortgage on property of A. held by B. The plaintiff, a creditor of A., entered into an agreement with A. and B., whereby the property was to be sold, free from B.’s mortgage, and B. paid out of the [874]*874proceeds. The plaintiff sought to have the mortgage set aside. Held:
“The plaintiff is precluded from receding from his agreement by every consideration which enters into the idea of equitable estoppel.”
In Jenness v. Berry, 17 N. H. 549, the question was whether a creditor could set aside a conveyance of land. The court charged the jury:
“If Berry knew all the circumstances connected with the transfer, and acquiesced in it, his claim upon the land would cease.”
Plaintiff excepted to the charge, and the supreme court held:
“It does not appear what agreement was made, or what constituted the acquiescence. If he [Berry] made any agreement confirming the deed upon any consideration or statement or agreement to that effect, upon the faith of which the grantees acted as they would not otherwise have done, under such circumstances that his subsequent assertion of his right as a creditor, if permitted, would operate as a fraud, he will be held' to have affirmed the transfer.”
Pursuing one remedy will preclude from pursuing another inconsistent remedy. In Morris v. Rexford, 18 N. Y. 552, a vendor replevied his goods from the vendee because of failure of consideration. Held an election to disaffirm the sale, and he could not sue for the purchase money. Rodermund v. Clark, 46 N. Y. 354; Moller v. Tuska, 87 N. Y. 166; note in 22 Abb. N. C. p. 270; Blessey v. Kearny, 24 La. Ann. 289; Railroad Co. v. Howard, 13 How. 307.
Free access — add to your briefcase to read the full text and ask questions with AI
BOOKSTAVER, J.
TMs action was brought by the plaintiff as a judgment creditor of one Diedrich Tragman, one of the defendants, to set aside a certain conveyance of two houses and lots in West 105th street, and two other houses and lots in West 124th street, in the city of ¡New York, made by Tragman to the defendant Littlefield, and have it adjudged to be fraudulent and void as to creditors, or to be in trust for Tragman and the plaintiff and his other judgment creditors. In addition to the defenses set up by the answer served before the trial, Littlefield was allowed upon the trial to amend by setting up as an affirmative defense that plaintiff recognized his title as owner of the property, and elected to ratify it. At the close of the plaintiff’s case the defendant Littlefield moved to dismiss the complaint on the ground that the plaintiff was estopped from maintaining this action by reason of the contract entered into between him and the defendant Little-field, dated May 10, 1890; and by reason of the work done under that contract by the plaintiff after- knowledge of the facts upon which he based his action; and by reason of the payments made by the defendant Littlefield to him upon the faith of his title as owner of the property, relying upon the acquiescence of the plaintiff in that title; and upon the faith of the contract entered into by the plaintiff and the defendant on the 10th May; and also on the ground that the plaintiff elected to affirm the title of the defendant Littlefield by entering into the contract of May 10, 1890, and by calling on Mr. Littlefield to go on and perform under the contract, and by himself doing work under the contract, and receiving payment under it from Littlefield, as owner of the property. After due consideration, the learned judge who tried the action granted the motion on the first of these grounds, and so fully and clearly stated his reasons for so doing that we do not see how anything can be added thereto, and we accept his reasons for so doing as our opinion upon that branch of the motion.
Although the learned judge who tried this case expressly refrained from placing his decision upon the ground of an election, yet we think the facts as they appear in this case would have warranted him in doing so. Leaving out of view what was done prior to the commencement of the action, it is evident that since [873]*873the suit was commenced, and with full knowledge of Ms rights, and before the trial of this action, he has by his continuous course of conduct in insisting upon the carrying out of Ms contract elected to affirm the deed of the 10th May to Mr. Littlefield. Election differs from estoppel, in that it is not necessary to show that one party would be injured by allowing the other party to pursue two inconsistent remedies. Many of the authorities, however, base the doctrine of election upon estoppel, and in one sense this is correct, in that it is bad faith and unfair dealing for a party to pursue two- inconsistent remedies. Bigelow, in chapter 20 of his work on Estoppel, discussing the doctrine of election, says:
“A party cannot occupy inconsistent positions; and where one has an election between several inconsistent courses of action he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the facts, determines his election, and works an estoppel.”
The estoppel, however, does not necessarily involve the idea of injury, although that element does exist in tMs case, as we think. A fraudulent transfer is merely voidable, and consequently is capable of confirmation either by assent at the time or by a subsequent ratification. Bump, Fraud. Conv. (3d Ed.) p. 464. At pages 465, 466:
“Although a creditor, is not a party to a fraudulent transfer, yet he may subsequently elect to confirm it; for any one may dispense with a provision of the law which was made for his protection. But before there can be any binding confirmation he must have notice or knowledge of the facts. If he has, however, been guilty of negligence in availing himself of information within his reach, constructive notice may be imputed to him.” “If with notice of the fraud, either actual or constructive, he makes any agreement upon consideration confirming the transfer, or any statement or agreement to that effect, upon the faith of which the grantee acts as he would not otherwise do, or under such circumstances that his subsequent assertion of his rights as a creditor, if permitted, would operate as a fraud, he will be held to have confirmed the transfer.”
In a note, 22 Abb. N. C. 268, (269,) Abbott says:
“It is an old maxim of the common law that if a man has an election to do or demand one of two things, and he determines his election, it shall be determined forever.”
Quoting from Spear, J., in Becker v. Walworth, 45 Ohio St. 169, 12 N. E. Rep. 1:
“It may be said, as a deduction from the authorities on the subject, that an election is the making of a choice between two or more benefits or rights, which estops the party from afterwards denying that an election has been made, and from demanding some benefit or right other than the one chosen.”
And in Bump, Fraud. Conv. p. 467, it is said:
“If a creditor enters into a contract with the debtor and grantee, whereby he affirms the, validity of the conveyance, he cannot afterwards impeach it.”
In Lane v. Lutz, *40 N. Y. 203, there was a voidable chattel mortgage on property of A. held by B. The plaintiff, a creditor of A., entered into an agreement with A. and B., whereby the property was to be sold, free from B.’s mortgage, and B. paid out of the [874]*874proceeds. The plaintiff sought to have the mortgage set aside. Held:
“The plaintiff is precluded from receding from his agreement by every consideration which enters into the idea of equitable estoppel.”
In Jenness v. Berry, 17 N. H. 549, the question was whether a creditor could set aside a conveyance of land. The court charged the jury:
“If Berry knew all the circumstances connected with the transfer, and acquiesced in it, his claim upon the land would cease.”
Plaintiff excepted to the charge, and the supreme court held:
“It does not appear what agreement was made, or what constituted the acquiescence. If he [Berry] made any agreement confirming the deed upon any consideration or statement or agreement to that effect, upon the faith of which the grantees acted as they would not otherwise have done, under such circumstances that his subsequent assertion of his right as a creditor, if permitted, would operate as a fraud, he will be held' to have affirmed the transfer.”
Pursuing one remedy will preclude from pursuing another inconsistent remedy. In Morris v. Rexford, 18 N. Y. 552, a vendor replevied his goods from the vendee because of failure of consideration. Held an election to disaffirm the sale, and he could not sue for the purchase money. Rodermund v. Clark, 46 N. Y. 354; Moller v. Tuska, 87 N. Y. 166; note in 22 Abb. N. C. p. 270; Blessey v. Kearny, 24 La. Ann. 289; Railroad Co. v. Howard, 13 How. 307. We think it follows from the foregoing authorities, and from the principles laid down therein, as applied to the facts of this case, that the plaintiff has waived his right to maintain this suit by his continuous assertion of and affirmance of his contract with Little-field since the commencement of the suit, and that this is an election within all the authorities, and operates to prevent a recovery in this action.
The court did not err in refusing to find plaintiff’s several requests to find in regard to the character and circumstances concerning the alleged fraudulent conveyance from Tragman to Little-field. In respect to this, the learned judge, in deciding the case, said:
“It must not be assumed that the court finds on the plaintiff’s evidence that Mr. Littlefield was guilty of fraud; on the contrary, my impression is that, according to plaintiff’s own showing, there has been no fraud whatever on the part of Mr. Littlefield, and that, if I were asked to find fraud, I could not conscientiously do so.”
This was upon plaintiff’s own evidence only, and it is manifest that it would have been unjust to both parties to have made any finding in regard to these matters on plaintiff’s evidence alone. It is equally clear that it would have been a waste of time to have gone on and taken defendant’s testimony in respect to those matters, when, no matter what the conclusion arrived at, for the reasons before stated the complaint would have been dismissed. We therefore think the judgment should be affirmed, with costs, All concur.