Cole v. Malcolm , 14 N.Y. Sup. Ct. 31 ( 1876 )

Pratt, J.:

There is no merit in this application.

The conveyance by Crawford to his wife was without consideration, and fraudulent as against creditors.

In equity Crawford’s creditors had a right to be paid their claims out of the property so conveyed, and she took the title subject to such equity.

Any one claiming under her must take the same rights she had, and no more.

The appellant must be held to have made the payment voluntarily, as Ire was not compelled to pay in order to protect his rights.

He got all that Mrs. Crawford had at the time of her death, ndiieh consisted of the real estate conveyed to her by her husband, subject to the claims of creditors. The claims being put by a judgment in the form of an active lien upon the property, he is entitled to redeem the property, but it cannot be tolerated that because a specific gift from Crawford to his wife failed, that it shall be made good by Crawford, out of property subsequently acquired by him.

I cannot accede to the doctrine that the appellant stands in the position of a surety. He was in no manner bound to pay the debts of Crawford. Neither was Mrs. Crawford, under whom be claims, bound to pay. The fact that the conveyance from Crawford to his wife was valid, “inter partes” is not material. This proceeding is not based upon any covenant. .

That the gift from Crawford to his wife did not meet the expectations of her heirs is their misfortune. The defendant has lost nothing that he could rightfully claim.

The order should be affirmed, with costs.

Barnard, P. J., concurred. Present — Barnard, P. J., Taloott and Pratt, JJ.

Order affirmed with costs.