Dunham & Dimon v. Waterman. sworn, says that the facts stated in the above confession are true, and further he says not. HENRY WATERMAN. Sworn to before me, the 25th day of August, 1851, MARCUS P. FERRIS, Commr. of Deeds. [Endorsed.] On filing the within statement and confession, it is adjudged by the court that the plaintiffs do recover against the defendant the sum of five thousand two hundred and fifty-one dollars and one cent, ($5,251 01,) with five dollars costs, and one dollar disbursements, making in all, $5,257 01. GEO. W. RIBLET, Clerk. The questions of law arising upon said assignment, and upon the pleadings herein, being stated and fully argued by the counsel of the respective parties, and having been duly considered, the said justice did then and there declare and decide, that the said assignment, judgment, and the execution, and the sale thereunder, were each and all of them fraudulent as against the creditors of the assignor, and consequently were fraudulent and void as against the plaintiffs in this suit; to which ruling and decision the counsel for the defendant did then and there duly except, separate and distinct exceptions being taken by defendants' counsel to each decision touching said assignment, judgment, execution and sale, and each of them. And the counsel for the said defendants, before the said decision, and before the case was submitted, stated and urged that the said court could not, and ought not, in the mode of trial then and there had, declare the said assignment, and judgment, and execution and sale, or either of them, fraudulent and void, unless for or upon questions of law, or for objections appearing upon the face of the said assignment, or for matters distinctly admitted to be true; that if the objections to the provisions of the said assignment, or to the judgment, execution, or sale, arose from or belonged to such facts, things, conduct, or intent as in their nature were or might be susceptible of explanation, then the defendants should have the opportunity Dunham & Dimon v. Waterman. of making such explanations, and that, with this view, the said defendants then and there offered to prove, and claimed the privilege of proving, that the matters, facts and circumstances set up in the several answers by the several defendants were in all respects true; but his honor, the said judge, decided that the evidence proposed and offered would be immaterial, and could not in any degree affect or change the determination of the questions of law then and there decided by him, or tend to sustain the said assignment and judgment, execution and sale, or either of them, and did then and there overrule the said offer to prove the said answers, and the defendants' counsel excepted to the said ruling and decision of the said justice. And thereupon the said justice did decide that the said plaintiffs were entitled to the relief prayed for in their said complaint. From the judgment, entered in conformity with this decision, all the defendants appealed to the general term of the court. E. Sandford, Esq., for appellants, made and argued the following points. I. The judgment confessed by Waterman to John Hecker and George Hecker was valid. 1. The statement in writing, signed by defendant, was in due form, and contained all that the Code requires. (Lawless v. Hackett, Code, §§ 382, 383; 16 J. R. 149.) 2. If there were any defect in it, such defect was a matter of form, and did not affect the jurisdiction of the court. The plaintiffs are not the parties who can take advantage of any irregularity. (2 R. S. 282, § 2.) 3. The court in which the judgment was entered had the power to permit the statement to be amended. 4. The judgment was confessed for an amount justly due from Waterman, for the sole purpose of securing its payment, and was valid as against other creditors. (Nelson v. Sharp, 4 Hill. 584; 2 Denio, 621; Candee v. Lord, 24 Wend. 94; 2 Coms. 269; Truscott v. King, 2 Seld. 147.) II. The judgment was not attempted to be set aside; an execution issued upon it, under which the sheriff levied upon and sold the property in question. The judgment and execution constituted a sufficient authority to the sheriff to sell, and Dunham & Dimon v. Waterman. (Jackson v. his sale conveyed a good title to the purchaser. Bartlett, 8 J. R. 361; Butler v. Maynard, 11 Wend. 548, 51; Jackson v. Cadwell, 4 Cow. 622; Woodcock v. Bennett, 1 Cow. 61.) III. The purchases of the property in question, at the sale made by the sheriff, were bonâ fide, and should be sustained upon legal and equitable principles against the claims of the plaintiffs. (Jackson v. Roosevelt, 13 J. R. 97; Broom's Legal Maxims, 323, 329.) IV. The execution on the judgment did not become dormant as against the plaintiffs. They had no judgment until after it was executed. In such a case the effect of a delay is only to postpone the dormant process to the execution of a more vigilant junior creditor, or the title of a subsequent bona fide purchaser. (Benjamin v. Smith, 4 Wend. 332, 335; Russell v. Gibbs, 5 Cow. 390; Butler v. Maynard, 11 Wend. 548, 52; Benjamin v. Smith, 12 Wend. 404, 406.) V. From the time of the levy until the sale, the sheriff, through his agent, had the actual possession of the property levied upon and sold. There were no instructions given by the plaintiffs in the execution to delay a sale or not to proceed upon the execution. There was no act, nor any declaration or conduct on the part of the plaintiffs, which would have rendered their execution dormant if another execution against. Waterman had been delivered to the sheriff before he made the sale. There is no ground for the imputation of any actual fraudulent intent to the Messrs. Hecker, nor for the inference of any trust as between Rowell and Waterman. The property of Waterman had been applied, at its full value, to pay his debts, and to the extent of that value, the judgment of the Messrs. Hecker had been satisfied and discharged before the plaintiffs had obtained their judgment, or placed themselves in a position where they could lawfully question the validity of the acts, which resulted in the transfer of the property to Mr. Rowell. (Power v. Van Buren, 7 Cow. 560; Kew v. Barber, 3 Cow. 272, 80; Doty v. Turner, 8 J. R. 20; Linnendoll v. Doe, 14 J. R. 222; Ray v. Hasbrouck, 19 Wend. 495, 97; Writingham v. Writingham, 20 J. R. 296; Hendricks v. Robinson, 2 J. C. R. 283.) Dunham & Dimon v. Waterman. VI. The assignment executed to the defendants, the Messrs. Hecker, is legal and valid. 1. Nothing illegal appears upon its face. No facts appear in the case which are, per se, conclusive evidence of fraud. 2. There are no evidences or badges of fraud in the facts and circumstances, admitted by the answers, which will authorize the conclusion that any actual fraudulent intent existed. 3. The question of fraudulent intent is declared by statute to be a question of fact, and not of law. (Cunningham v. Freeborne, 11 Wend. 240.) VII. The judgment at the special term should be reversed, and the complaint be dismissed with costs, as to all the defendants. Charles H. Hunt, Esq., for respondents, made the following points. I. The judgment which Waterman confessed in favor of the Heckers, and all proceedings taken under it, are void as to these plaintiffs. 1. Because the statement upon which it was entered evades and violates the statute in such case provided. (Code, § 383.) 2. Because Waterman continued his possession of and business with the property levied on. (Burnell v. Johnson, 9 Johnson, 243; Storm v. Wood, 11 Johnson, 110, 112, and cases cited from English authorities, note (a), p. 112.) II. If the judgment were suffered to stand of itself, for priority of lien, or any similar purpose, yet the Heckers waived all right to any proceeding under it, by accepting the assignment. (Hawley v. Mancius, 7 Johnson, Ch. R. 174, and especially 184, 185.) III. The assignment by Waterman is void. 1. For matters appearing on its face. (a.) The provision authorizing the business to be continued. (b.) The provision making the instrument absolutely subservient to the judgment and levy held by the assignees. (2 R. S. 137, § 1; Hooper v. Tuckerman, 3 Sandford, 311; Grover v. Wakeman, 11 Wend. 202, Sutherland, J.; Haffner v. Irwin, 1 Iredell's Law R. 490; Barney v. Griffin, 2 Coms. 365; Nicholson v. Leavitt, 1 Seld.; Bodley v. Goodrich, 7 How. 276.) 2. For Waterman's continued possession of the property, and the actual continuance of the business, whether Dunham & Dimon v. Waterman. by him or his assignees, especially while the assignment was used as a shield for an effort to extort from Waterman's creditors full releases to him, on payment of a small per centage of their demands. (Hart v. Crane, 7 Paige, 37; Connah v. Sedgwick, 1 Barb. S. C. 210; Grover v. Wakeman, 11 Wend. 187.) IV. The purchase by Rowell was neither in good faith, nor without notice, nor for a consideration, but a manifest fiction; and his claim to own the property under it, with his complete knowledge of the judgment, levy, sale, assignment, and entire conduct of the other defendants, forms abundant ground to charge him as a party to the whole fraud. V. The value of the machine shop property alone (misapplied, converted, and claimed among the defendants, Heckers and Rowell) far exceeding the amount of the plaintiff's debt, as the complaint and answers agree; an accounting therefor is unnecessary, and the provision in the judgment for the direct payment of that debt by those parties is entirely proper. BY THE COURT. BOSWORTH, J.-The appeal in this case presents substantially but two questions: First. Is the judgment confessed by Waterman to the Heckers fraudulent and void, as against the plaintiffs, either by reason of matters appearing on its face, or by reason of facts admitted in the pleadings, or by reason of both? Second. Is the assignment made by Waterinan to the Heckers fraudulent and void, as against the plaintiffs, on any such ground? All the extrinsic facts alleged in the complaint, on the existence of which the charge of an actual intent to defraud is based, are denied in the answers. No evidence was permitted to be given of the extrinsic facts thus affirmed or denied, but the action was tried and decided on the ground that the assignment, judgment, and purchases of the assigned property mentioned in the pleadings, were, in judgment of law, fraudulent and void, for reasons or grounds in their nature not susceptible of explanation, arising from the terms of the assignment, and from the facts in and by the pleadings admitted. First, as to the judgment. Is that void for any such reason, or upon any such ground? The whole amount of it is alleged D.-III. 12 |