Snyder v. Snyder

115 N.Y.S. 993

• Court: New York Supreme Court
• Decided: March 19, 1909
• Status: Published

Opinion

FOOTE, J.

Plaintiff is not entitled to a vendor’s lien, even if one could be adjudged in this form of action, first, because her debt represents part of the purchase price of personal property, and the amount which is purchase price of the land is not shown; second, because the transfer of the note to her, if valid, did not carry the vendor’s lien, but waived it. White v. Williams, 1 Paige, Ch. 502; Hallock v. Smith, 3 Barb. 267; Smith v. Smith, 9 Abb. Frac. (N. S.) 480..

Although many of the circumstances raise serious doubt as to the alleged payment of the $3,000 as part consideration for the farm, yet, in the absence of sufficient evidence or controlling circumstances to the contrary, I must accept the positive testimony of defendant and his wife to such payment, corroborated as it is by the receipt of David Snyder for the money and the promissory notes given by defendant to his wife for $3,000 of the money borrowed from her. The facts that David Snyder, during the remaining four years of his life, is not shown to have had any such amount of money, and that its loss or disposition is in no way satisfactorily accounted for, and that when he died it had wholly disappeared, and that his mode of life was such that he could not have used any of it for himself, have caused considerable hesitation in reaching the conclusion that it was actually paid. It is, of course, possible that deceased burned this money, as one witness claims to have overheard him threatening to do, or he may have made a gift of the money to defendant or some member of his family. If so, it cannot be recovered in this form of action. The testimony as to amounts of money in currency seen in possession of deceased and in poclcetbooks in his room is of little probative value here. It does not show him in possession of so large a sum as $3,000 at any time. These circumstances, however, I am constrained to hold do not overcome the positive testimony as to the actual payment of the money. The weight of the testimony is in favor of the defendant to the effect that on the purchase of this farm defendant agreed to pay $3,000, in addition to the consideration named in the deed, and that he did actually pay that sum within about two months after the deed was made.

This being so, the transaction was not fraudulent as to plaintiff, notwithstanding the provision for the grantor’s benefit and his future support. The grantor owed no other debts; at least, it is not shown that he did. With $3,000 in-his possession, he was not insolvent. He had ample property to pay all his debts, including plaintiff’s note.

The provision for his future support was valid at the time it was made, and remained valid, at least until such time as he ceased to have sufficient other property to pay plaintiff’s note. He made all the payments on this note which matured in his lifetime, amounting to over $700 of principal and interest. If he committed any fraud on plaintiff’s rights, it was not in making the deed, but in subsequently disposing of the $3,000; or, if he did not dispose of it, then some third party has committed a fraud both on plaintiff and the deceased by secreting it. I think the case is controlled by the principles decided in Kain v. Larkin, 131 N. Y. 300, 30 N. E. 105.

It follows that plaintiff’s complaint must be dismissed, but no costs are allowed to defendant. Findings may be submitted.