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Smith, Paterson v. (Vt.).

1088

Smith, Swain v. (N. J. Prerog.).

Smith, State v. (Vt.)..

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....

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State Council of Pennsylvania, Derry Coun-
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(Pa.)

208

805

97

101 Stetler v. Borough of East Rutherford (N.
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.1133

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733

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.1005

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811 Storer Post, G. A. R., v. Page (N. H.).

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Sprague, Dexter v. (R. I.).

889

875 Streitwolf v. Streitwolf (N. J. Ch.).......
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262

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Stuart v. Staten Island Clay Co. (N. J. Sup.) 805
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Sullivan v. Consolidated Traction Co. (Pa.) 944
Sullivan v. Delaware & H, Canal Co. (Vt.). 1084
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641 Swearingen v. Sewickley Dairy Co. (Pa.)... 941
508 Swearingen v. Sewickley Dairy Co. (Pa.)..1135
618 Sweet v. Postal Telegraph & Cable Co.
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392 Tepper v. Supreme Council of Royal Ar-
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834 Thatcher, Stidham v. (Del. Super.).
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165 Thompson v. Currier (N. H.).

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545 Thompson v. Morse (Me.)..

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500 Thompson, Forbes v. (Del. Super.).

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268 Thompson's Rur Bridge Co., Oliver v. (Pa.) 230

703 Thrall, Cheshire Beef Co. v. (Vt.).....

160

470 Tiesler v. Town of Norwich (Conn.).
830 Tiffany, Chapman v. (N. H.).
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Town Council of Westerly, Pawcatuck Val. St. R. Co. v. (R. I.).

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Town of Stonington, Sisson v. (Conn.). Town of Swanton, Hyde v. (Vt.)....

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Town of Union, Hamilton Woolen Co. v. (Conn.)

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Town of Union, Quinebaug Reservoir Co. v. (Conn.)

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Travelers' Ins. Co. v. Parker (Md.).

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Waechter v. Second Ave. Traction Co. (Pa.) 967 Wilson Co. v. City of Waterbury, two cases

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Wilson, Ely v. (N. J. Ch.).

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349

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THE

ATLANTIC REPORTER.

VOLUME 47.

KINMONTH v. WHITE et al. HANDLEY V. SAME. ASBURY PARK & OCEAN GROVE BANK v. SAME. PITTENGER V. SAME. NAVESINK NAT. BANK OF RED BANK v. SAME.

(Court of Chancery of New Jersey. August 16, 1900.)

OF

FRAUDULENT CONVEYANCES -INTENT GRANTOR-KNOWLEDGE OF GRANTEE-BONA FIDE PURCHASER-RIGHT TO REDEEM. 1. W., who was indebted to complainants, was heavily involved as indorser on his brother's paper. The brother committed suicide, and W. immediately commenced to dispose of his real estate. He mortgaged one lot to another brother to secure notes which he alleged the latter held against him, and another to his mother as security for borrowed money. Νο cash was paid on either mortgage at the time. He also deeded his homestead to his mother, an old decrepit woman, without consulting her, and afterwards procured a check from her in payment. He deeded another valuable lot to his brother, receiving in return two vacant lots which he had never seen, and which had been conveyed to his brother by W.'s counsel on the same day. Finally he procured two business men to buy other lots at a low price, and the conveyances to them were made and the money paid without an examination of the title, all in one day. He received in all the sum of $5,500, as to the disposition of which he could give no satisfactory account. Held, that the conveyances were void, as in fraud of credit

ors.

2. Where the brother, who was a keen, well to do farmer, paid $2,500 to W.'s counsel for the two lots, without having previously seen them, and immediately deeded them to W., receiving the conveyance in return, the conveyance to him should be set aside, since he had notice of W.'s fraudulent intent.

3. Where a defendant, in order to defraud his creditors, conveyed property to his mother, who paid a fair value therefor, and did not share in his fraudulent intent, the creditors could nevertheless redeem the property.

4. Where a defendant, in order to defraud his creditors, conveyed valuable property at a low price to two business men, the transfer being hurried through without an examination of title, and the purchasers admitting notice of his financial condition, the creditors could redeem the property.

Actions by Hugh S. Kinmonth, Honorine Handley, the Asbury Park & Ocean Grove Bank, William D. Pittenger, and the Navesink National Bank of Red Bank against Andrew J. White and others. Judgment for complainants.

47 A.-1

Samuel A. Patterson, for complainants Kinmonth and Handley. John F. Hawkins, for complainant banks. Frank P. McDermott, for complainant Pittenger. R. T. Stout and Wesley B. Stout, for defendants,

PITNEY, V. C. The complainants are, severally, judgment creditors of the defendant Andrew J. White, and the common object of their several bills is to enforce the lien of their judgments upon four parcels of real estate situate near Asbury Park, in Monmouth county, which the judgment debtor owned on the 23d of March, 1898, and which between that date and the 6th of April, 1898, he conveyed away severally to four of the defendants, to wit, Caroline White, Louis Franklyn White, and to Messrs. Hurley and Taylor. The recovery of the judgments and the issuing of executions and levies as alleged in the bills were admitted at the hearing; also, that the debts arose prior to the conveyances. For the conveyances to Messrs. Hurley and Taylor cash was paid by those gentlemen to the judgment debtor, and cash was also paid by the defendant Caroline White for the conveyance to her; and a semblance of consideration was given for the conveyance to Louis Franklyn White, in the shape of certain real estate situate in the county of Sussex, conveyed by him to the judgment debtor.

The first question to be determined is as to the object and motive of Andrew, the judgment debtor, in making the conveyances. Did he make them for the purpose of putting the proceeds thereof beyond the reach of his creditors, and so defrauding them? If that be established, then, second, what knowledge or notice of that intention did the several grantees have, and what conscious aid, if any, did they give him in his scheme?

First, as to Andrew's intention. He was one of five brothers, who, with a sister, were the children of one Britton White, who owned valuable real estate in Neptune township, Monmouth county, and adjoining, but just outside, the corporate limits of the boroughs of Ocean Grove and Asbury Park. I faced a street called "South Main Street," at that point known as the "Bowery," which was part of the main turnpike road between Asbury Park and Belmar. Its course was west

of south, and about parallel with the tracks of the railroad. Of this real estate Andrew at the time in question was the owner of a valuable portion, subject to incumbrances. He also lived with his wife in a house which he owned in a suburb called "Loch Arbour," to the north of Asbury Park, and separated from it by Deal Lake. He was an industrious and reasonably thriving man, and had considerable income from the real estate in Neptune township. But he was heavily involved as indorser for his brother Washington White, and his paper was held to a considerable extent by the several complainants. The judgments of the several complainants are based in part, at least, upon Andrew's indorsements for his brother Washington. On the 22d of Marcu, 1898, Washington committed suicide, and that fact became instantly known throughout Asbury Park and its suburbs; and the fact that Andrew was heavily involved for Washington also seemed to be well known. Andrew at once set about disposing of all his real estate. He says that he first consulted his counsel, Mr. Kennedy, of Asbury Park, but that he was ill and unable to attend to business, and recommended him to Mr. Charles Cook, a solicitor of Asbury Park, to whom he went. And he also at the same time, or shortly afterwards, consulted Messrs. R. T. & W. B. Stout, also solicitors of Asbury Park. In what followed he acted under the advice of those gentlemen. On the 24th of March he executed a mortgage to his brother Louis Franklyn White, who lived near Freehold, 20 miles away, to secure the sum of $2,000, as witnessed by a bond of the same date, on a lot, part of the Neptune township property, mentioned in the pleadings and proofs as "No. 4," facing on South Main street, and reaching to the railroad. This lot so mortgaged to Louis Franklyn White (called in the evidence Franklyn White) is 63 feet and 10 inches front, and 274 feet and 4 inches deep. It was already subject to a mortgage to the chancellor for $1,500. On the 26th of March he executed another mortgage to his mother, the defendant Caroline White, who lived in the country, 3 or 4 miles away, to secure the payment of $700, as witnessed by a bond of the same date. This covers a lot mentioned in the pleadings as No. 2, also fronting on South Main street, being 74 feet front, and 274 feet and 4 inches deep, subject to a previous mortgage of $2,500 to one Ward. These mortgages were both acknowledged on the 26th of March, and recorded on the 29th, no cash being paid at the time for either. On the 23d of March he executed a deed of his homestead in Loch Arbour to his mother, Caroline White, in consideration of $5,000. That deed was knowledged on the 23d, and recorded on the 29th, of March. The property was subject to a mortgage of $2,000. On the 6th of April he executed a deed to Louis Franklyn White (the consideration expressed being "one dollar and other valuable considerations") for the lot called "No. 2," being 74 feet front, and

ac

274 feet deep, on South Main street. This was subject to a mortgage of $2,500 to Ward, and the mortgage of $700 to Caroline White. On the same day he conveyed to Hurbert Hurley, of Asbury Park, in consideration of $1,600, the lot known as "No. 3," situate on South Main street, 25 feet front and 255 feet deep. This lot was subject to a mortgage of $600 held by one Baird. And on the same day he conveyed to Nathan J. Taylor, of Asbury Park, in consideration of $5,000, the lot called "No. 4," being 63 feet and 10 inches front, and 274 feet and 4 inches deep, fronting on South Main street, which was already subject to a mortgage to Chancellor McGill of $1,500, and a recent mortgage to Louis Franklyn White of $2,000. For these conveyances he received cash as follows: From his mother, Caroline White, $3,000; from Hurbert Hurley, $1,000; and from Nathan J. Taylor, $1,500,-a total of $5,500. Now, of the disposition which he made of this $5,500 received by him in cash within a few days, he gives no satisfactory account. He says that he paid a few housekeeping and other debts, and gave a trifle to his son; but after a most thorough cross-examination, and being advised of the improbability of his story, and urged to give a credible account of his disposition of it, he utterly failed. He declared that none of it remained subject to his disposition. He admits that he was pressed by the creditors of his brother Washington. The mortgage to his mother was given, as is said, to secure a balance due on a note which she held of his for borrowed money; and the mortgage which he gave to his brother Franklyn was given to secure the amount due on three promissory notes which it is alleged his brother Franklyn held against him. The mother is an old, decrepit person, unaccustomed to business. But she had considerable means, and money in bank; and both the deed and mortgage were made and delivered to her without any previous conference or consultation with her, and a check for $4,000 procured from her, and the money drawn on it, and $1,000 handed to her son Eastman White, brother of Andrew, and $3,000 retained by Andrew, which, added to the mortgage of $2,000, made up the $5,000 consideration money. There is no evidence that any attempt was made by the judgment debtor to settle with the creditors who held his name as security for his brother Washington, and divide this money among them. His mother swears that no part of it was returned to her. It will be observed, in connection with the affair of his mother, that the natural mode of dealing with her, if he. had intended in good faith to convey to her the house and lot where he lived, was to have taken out of the consideration money of $3,000, above the mortgage of $2,000, the amount of the note which she held against him, and to have received from her simply the balance due him. But, as we have seen, he gave her a mortgage on other property to secure the old note, and received from her in

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