L. Austin Spalding, Respondent, v. William Norman et al., Appellants

L. Austin Spalding, Respondent, v. William Norman et al., Appellants. (Submitted January 14, 1873; decided March term, 1873.) This action was brought by plaintiff as judgment creditor of defendant, William Norman, to set aside a conveyance made by the latter to one Wiley and by Wiley to defendant, Margaret Norman, wife of William. Said defendants were married in 1832, in England. At different times prior to 1843 Mrs. Norman received from her father and others about $2,000, all of which she let her husband have without any agreement as to its return. In 1851 she received $800, which also went into the hands of her husband. Prior to 1856 Norman gave his wife $1,500 on account of the moneys he had had of her. On the 12th November, 1856, he agreed to convey to her his farm (the land in question) for $1,500, and conveyance was made through Wiley. At this time there were judgments against Norman for $7,000. The farm was worth $9,000. The judgments were upon notes whereon Norman was indorser, and were subsequently paid mostly out of property of those primarily liable. The $1,500 nominal consideration was not paid down, but was given by Mrs. Norman to her husband from time to time, and expended in building a brewery upon her land. On the 2d March, 1857, she executed a mortgage on the farm for $4,000 to secure borrowed money had and used by her husband. In December, 1864, plaintiff recovered his judgment upon a debt contracted in June previous. The court found as conclusions of law, in substance, that the repayment by Norman to his wife of over $800 was invalid as to his creditors; that she had the right to receive and retain that sum; that the transfer to her was not absolutely void, but was in effect a valid mortgage in equity to the extent of $800, and a sale was directed, and the proceeds, after payment of the $4,000 mortgage and the $800 to' Mrs. Norman, to be applied to the payment of plaintiff’s judgment and costs. At the General Term the judgment entered in accordance with such decision was modified so as to declare “ that the deed in controversy shall be held as security by the defendant, Mrs. Norman, for the payment of the sum of $1,500,” and affirmed as thus modified. This judgment was affirmed here upon the ground of fraud in fact. (Lott, Oh. C., dissenting.) Ely & Crowley for the appellants. H. Gardner for the respondent. [MAJORITY — Earl, C., Lott, Ch. C.,] Earl, C., reads for affirmance. Lott, Ch. C., for reversal. All concur for affirmance on the ground of fraud in fact, except Lott, Ch. O., dissenting. Judgment affirmed.