Powers of Revocation. A power of revocation reserved in a settlement in favor of grantor was first made fraudulent as to subsequent purchasers from such grantor by 27 Eliz., chapter 4, section 5,98 and in the absence of a system of recording conveyances, was a salutary provision. But a power of revocation, reserved to a settlor in a marriage settlement, or in a family settlement, may be a very proper reservation and in fraud of no one.99 The other portions of the foregoing section of this statute relate to the execution of certain powers of appointment and revocation by grantees of the power. They have been sufficiently referred to in the notes and comments on the Article on Powers, to which they more properly belong. This section would appear to refer to beneficial and not to trust powers, which are controlled by other principles than those stated under this article. Execution of Powers. The latter portions of this section are to be read in connection with the cognate sections of the Article on Powers. As a rule a quitclaim deed, without covenants of seisin and warranty, is not operative by estoppel if the grantor afterward acquire the property. Yet a deed by a mortgagee only is operative to assign his mortgage. But if a grantee of a power execute a deed before the time specified in the grant of the power, it operates by virtue of this section the moment the time for execution arrives, and irrespective of any covenants. Trusts for the Benefit of the Settlor. Trusts of personal property for the benefit of settlors are still void as to creditors.5 By analogy this statute is extended to trusts of real property for the settlor's own benefit, although on quite another principle, pointed out by Gray, J., such trusts of lands would seem to be able to be sequestrated by the settlor's creditors. 981 Sand. Uses, 171, 172. 99 Supra, pp. 572, 612, 616, under $$ 130, 144, Real Prop. Law; Kain v. Larkin, 131 N. Y. 300; Schreyer v. Schreyer, 101 App. Div. 456, 460; Newton v. Jay, 107 id. 457; cf. Adams v. Adams, 114 id. 390. 1 Art. 5, Real Prop. Law, pp. 572, 612, 616. 2 $$ 175, 176, 180, 181, supra. 3 Sparrow v. Kingman, 1 N. Y. 256; Jackson v. Littel, 56 id. 108; Donovan v. Twist, 85 App. Div. 130. 4 Gottlieb v. City of New York, 128 App. Div. 148. 52 R. S. 135, § 1; chap. 417, Laws of 1897 (constituting chap. 47, General Laws), § 23, chap. 41, Consol. Laws, $ 34. 6 Schenck v. Barnes, 156 N. Y. 316; Townsend v. Bumpus, 29 App. Div. 122; Kain v. Larkin, 4 id. 209; revd., 131 N. Y. 300; Newton v. Jay, 107 App. Div. 457; Adams v. Adams, 114 id. 300; et supra, p. 153, note 41 for other cases, and see Fowler's Pers. Prop. Law of N. Y., p. 179 (2d Edit.). Equitable executions. In this connection it may be well to point out, that there is a considerable difference of opinion upon the point, whether equity has, independently of statute, power to reach equitable assets for the benefit of judgment creditors at law. Some authorities affirm the power; others deny it.7 7 Harper v. Clayton, 35 Law Rep. Annot. 211; Dittmar v. Gould, 60 App. Div. 94, 97; § 1871, Code Civ. Proc. (formerly 2 R. S. 174, §§ 38, 39); 4 Kent, Comm. 61; Tompkins v. Fonda, 4 Paige, 448; Stewart v. McMartin, 5 Barb. 438, 446; Story, Eq. Juris. 88 366, 367, 368; Hadden v. Spader, 20 Johns. 554; Newton v. Jay, 107 App. Div. 457, 466. § 268. Disaffirmance of fraudulent act by executor and others. An executor, administrator, receiver, assignee or other trustee, may, for the benefit of creditors, or of others interested in real property held in trust, disaffirm, treat as void and resist any act done or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate or property; and a person who fraudulently receives, takes, or in any manner interferes with the real property of a deceased person, or an insolvent corporation, association, partnership, or individual, is liable to such executor, administrator, receiver or other trustee for the same, or the value thereof, and for all damages caused by such act to the trust estate. A creditor of a deceased insolvent debtor, having a claim or demand exceeding one hundred dollars against such deceased, may, for the benefit of creditors or others interested in the real property of such deceased, disaffirm, treat as void, and resist any act done or conveyance, transfer or agreement made by such deceased in fraud of the rights of any creditor, including himself, and may maintain an action to set aside such act, conveyance, transfer or agreement without having first obtained a judgment on such claim or demand; but the same, if disputed, may be established on the trial. The judgment in such action may provide for the sale of the premises or property involved, when a conveyance or transfer thereof is set aside, and that the proceeds thereof, be brought into court or paid into the proper surrogate's court to be administered according to law. Formerly section 232, Real Property Law of 1896, chapter XLVI, General Laws: 8 232. Dişaffirmance of fraudulent act by executor and others. An executor, administrator, receiver, assignee or other trustee, may, for the benefit of creditors, or of others interested in real property held in trust, disaffirm, treat as void and resist any act done or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate or property; and a person who fraudulently receives, takes, or in any manner interferes with the real property of a deceased person, or an insolvent corporation, association, partnership, or individual, is liable to such executor, administrator, receiver or other trustee for the same, or the value thereof, and for all damages caused by such act to the trust estate. A creditor of a deceased insolvent debtor, having a claim or demand exceeding one hundred dollars against such deceased, may, for the benefit of creditors or others interested in the property of such deceased, disaffirm, treat as void, and resist any act done or conveyance, transfer or agreement made by such deceased in fraud of the rights of any creditor, including himself, and may maintain an action to set aside such act, conveyance, transfer or agreement, without having first obtained a judgment on such claim or demand; but the same, if disputed, may be established on the trial. The judgment in such action may provide for the sale of the premises or property involved, when a conveyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper surrogate's court to be administered according to law.8 Note on this Section. In the General Laws this section was taken by the Commissioners of Statutory Revision from chapter 314, Laws of 1858, “An act to declare and extend the powers of executors, assignees, receivers and other trustees, and to protect the rights of creditors and others against frauds, and for other purposes," as amended by chapter 487, Laws of 1889, and chapter 740, Laws of 1894. Administrators, Executors, etc. Administrators, etc., may now maintain an action to disaffirm or set aside transfers by the persons they represent, without liens or judgments first obtained. And such right of action is now vested in such persons primarily.10 Creditors May Act if Executors, etc., Refuse. If executors, etc., refuse to act, creditors may do so.1 11 Section does not Extend to Next of Kin. This enabling act does not benefit next of kin.12 Effect of this Section. Before the Legislature invested voluntary assignees and insolvents' trustees with power to maintain actions or suits to set aside conveyances of their grantors, they could not maintain such actions or suits, for they stood in the shoes of their assignors, and inter partes such conveyances are good. But under the statutes, including the present section, assignees for creditors now have greater rights than their assignors, and may attack the 8 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 9 Southard v. Benner, 72 N. Y. 424; Potts v. Hart, 99 id. 168; Harvey v. McDonnell, 113 id. 526; Barton v. Hosmer, 24 Hun, 567; Southard v. Pinckney, 5 Abb. N. C. 184; Truesdell v. Bourke, 29 App. Div. 95. 10 McNaney v. Hall, 86 Hun, 415. conveyances of their predecessors in title.13 Such assignees may maintain an action set aside transfers by assignees, even without proof of fraudulent intent, if such assignment or conveyance contravenes some statute protecting creditors.14 But not because of the non-filing of a chattel mortgage.15 Simple Contract Creditors. Simple contract creditors of deceased insolvents may now maintain representative suits to set aside their debtor's transfers in fraud of creditors.16 Code of Civil Procedure. Section 786 of the Code of Civil Procedure applies to actions brought under this section.17 Receivers in Supplementary Proceedings. to receivers in supplementary proceedings.' 13 Southard v. Benner, 72 N. Y. 424; The Natl. Tradesmen's Bank v. Wetmore, 124 id. 241, 254, 255; Matteson v. Palser, 173 id. 404. 14 Wile v. Cauffman, 39 App. Div. 206. 15 Sheldon v. Wickham, 161 N. Y. 500. 16 § 268, Real Prop. Law; § 19, This section does not extend Pers. Prop. Law, chap. 41, Consol. 17 Matter of Thoesen & Brother, 62 App. Div. 87. 18 Stephens v. Meriden Britania Co. 160 N. Y. 178, 183. |