Meyer v. Mohr

19 Abb. Pr. 299, 1 Rob. 333

Opinion

By the Court.

Footnotes

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*—White, J.

In support of the appeal, the defendant alleged, in substance:

1st. That the defendant Mohr was not insolvent, or in such embarrassed circumstances at the time of the conveyance of his real estate to his wife, as to render the conveyance void as against his then existing creditors; and that neither upon that, nor upon any other ground, was the conveyance void.

2d. That there was no sufficient proof given before the referee that the execution issued upon the judgment recovered by Meyer against Mohr, was returned by the sheriff, and filed in the , clerk’s office before the commencement of the present action.

3d. That the present action was brought without cause, and in bad faith, the defendant having ample personal property subject to levy, from which the execution might have been satisfied jf the plaintiff or the sheriff had honestly attempted to collect it; that the plaintiff was, therefore, not entitled to bring the action, and the complaint should be dismissed.

The judgment was also objected to as not recognizing or providing for the wife’s right of dower.

But none of these objections appear to have been sustained by the proof before the referee.

The assets or personal property remaining in Mohr’s hands, after he had conveyed his real estate to his wife, formed a very unreliable and insufficient security for the payment of his debts, especially when the probable necessary and reasonable demands for the support of himself and his family, to which it might be subjected, should be taken into account and deducted from it. And Mohr seems to have been conscious of that fact himself, as appears from the testimony of Schafer, who states that Mohr said that he must have time to enable him to pay Meyer and Humerhoff, and that it would ruin him if they enforced immediate payment; and to the same effect was the testimony of Humerhoff and of Steinheimer; and the testimony of these witnesses shows, also, a deliberate fraudulent intent, on the part of Mohr, to hinder and delay his creditors.

The proof of the issuing, return, and filing of the execution before the commencement of this action was sufficient. It con sisted of the execution and the indorsements upon it by the sheriff and clerk respectively, showing its receipt and return by the sheriff, and its filing in the clerk’s office, and the statement of the witness blew man, that he saw it on file in the clerk’s office. The testimony of bTewman is not .as pointed as it should be in its designation of the process which he saw on file; but it is reasonable to assume that he intended, or referred to the execution in the suit of Meyer a. Mohr.

The proof does not show that there was sufficient property of the defendant, besides the real estate, that might have been levied upon; and the testimony that was offered by the defendant, and excluded, does not appear to he material. The return of “ no property” by the sheriff, upon the execution, was sufficient to justify the institution of the present action. To show that there was some personal property that might have been seized, would not affect the plaintiff’s rights, unless it was also shown that he knew of its existence, and omitted to act upon it. The testimony of Degener, respecting the value of the. defendant’s tools, was not important. Taking Mohr’s own statement of «their value, and rejecting Degener’s altogether, would not materially alter the facts from those found by the referee.

And with respect to the omission in the judgment to provide for the defendant Margarita’s dower in the real estate, it is only necessary to observe, that having united in the fraudulent deed of the property to Emmons (the party through whom the real estate was transferred to her), she thereby divested herself of her inchoate right of dower, and must abide the consequences.

The judgment must be affirmed with costs. '

Present, Bosworth, Ch. J., White and Monell, JJ.