Van Wyck v. Baker

17 N.Y. Sup. Ct. 39

• Court: New York Supreme Court
• Decided: February 15, 1877
• Status: Published

Opinion

Gilbert, J.:

The judgment is erroneous in ordering a sale of the real estate without providing for a conveyance by the judgment debtor, and in directing the balance of the proceeds, after paying the plaintiff and Beneville, to be paid to the judgment debtor. The court has no power to effect a transfer of title to lands in that way, except in special cases authorized by statute, such as mortgage and partition cases, sales of infants’ lands, ordinary execution sales and the like. In suits by creditors to reach lands conveyed with intent to defraud them, the proper decree is to set aside the fraudulent conveyance, and permit the creditor to issue an execution, and sell under that, or compel the debtor to convey to a receiver, and order the latter to sell. The fraudulent deed being annulled, the title remains in the debtor, and can be passed only by her deed. (Jackson v. Edwards, 1 Paige, 404; Bank v. White, 2 Seld., 236; Bank v. Risley, 19 N. Y., 369.) The deed from the judgment debtor to Beneville, if fraudulent, was not void, but voidable only at the election of creditors. It was valid between the parties to it. The defendant Beneville, in any view of the case, therefore, would be entitled to all that might remain of the land or the proceeds thereof, after satisfying the claim of the plaintiff. We might modify the judgment in the particulars referred to, but we are not satisfied that the evidence is sufficient to warrant a decree annulling the deed on the ground of the fraud upon creditors alleged.

The judgment, therefore, will be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., concurred. Dykman, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.