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Longworth v. Longworth

Supreme Court of New York, Appellate Division

April 21, 1911


Page 188

APPEAL by the defendants, William H. Longworth and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 17th day of November, 1910, denying the defendants' motion for judgment on the pleadings under section 547 of the Code of Civil Procedure.


Alfred T. Davison [Arthur Gutman with him on the brief], for the appellants.

George Wallace, for the respondent.


The plaintiff, married to the defendant William H. Longworth in June, and abandoned by him on September 22, 1909, seeks by this action to set aside a deed by him executed to his sister, a defendant, on September 10, 1909, conveying two pieces of land, one of which the defendants, in collusion with the mortgagee, suffered to be sold in default of the payment of a mortgage thereon, principal $1,000, interest $30, and to the net proceeds of which on the sale, $14,146.27, deposited with the county treasurer, the defendant Mary A. Longworth claims title. She does not allege that she has or will bring suit for separation and support, nor does she in the complaint indicate any intention to do so. She simply asks that the title to the land and the proceeds of the piece sold be declared in her husband. For what purpose and to what end does not appear. The complaint is bereft of purpose. It indicates that the husband

Page 189

had large means, and, so far as appears, could respond to his duty for her support. But the degree and manner of her support would depend upon the amount of his property, and he would not be permitted, with intent to defraud her, to alienate his property, for such action on his part, if it did not destroy his entire ability to support her, would diminish the amount of property by which her support would be measured, and impair his ability to respond therefor. The pleadings should at least show that the husband by the fraudulent transfer of his property, in which both defendants participated, would, if effectual, deprive the husband of means to support his wife in a manner conforming to his previous station, and that such was the purpose of the parties respecting it. Moreover, the pleadings should show that the plaintiff had taken action to enforce her support by her husband, or that she intended to do so, and, while such prayer is not indispensable, it would be fitting to ask that the property transferred be appropriated to the wife's support pending determination by the court in proper action brought therefor. If it be that the wife, since the action was begun, has taken proceedings for divorce, separation with alimony, or if such has already been awarded her, a supplementary complaint may be ordered. While the complaint in its present state is technically defective, it should not be dismissed without opportunity for amendment. The following review of decisions will illustrate that the wife should, in an action brought by her to set aside the conveyance, present to the court something more than a statement that it was made in contemplation of his (the husband's) abandonment and for the purpose of 'putting his property where it could not be reached by any such order of this Court as might be intended and made to provide for the support and maintenance of this plaintiff out of his estate.'

In Holland v. Holland (121 Mich. 109) the complainant, wife, had procured a decree separating her from her husband and for ascertaining what alimony should be paid her, and, as it was necessary to know the extent of the husband's property, a bill was filed to set aside a deed executed by him to his mother, to which his wife's signature was obtained by fraudulent representations. It was found and decreed accordingly

Page 190

that the deed was given in anticipation of divorce proceedings to be instituted by him to avoid payment of alimony therein, and that it was void, inasmuch as it was procured by fraud and was made with 'intent to hinder, delay, or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts, or demands, as against the persons so hindered, delayed, or defrauded.' The court said: 'It will be noticed that this statute is not limited to creditors, but extends to other persons, and is not limited to debts, but extends to suits, damages, forfeitures, and demands. The cause for which complainant was granted a divorce was one existing prior to December 27, 1895, the date of the deed in question. It is my conclusion that when a wife has a cause for divorce, and her husband, to avoid paying alimony, conveys away his property, the conveyance is void, under this statute as to her. While not in the strict letter a creditor, she comes within the term 'other persons; ' and while not, strictly speaking, delayed in the collection of a debt, she is hindered, delayed or defrauded out of her demands. ( Lott v. Kaiser, 61 Tex. 673; Feigley v. Feigley, 7 Md. 537; 61 Am. Dec. 375; Bouslough v. Bouslough, 68 Pa. St. 495, 500; Tyler v. Tyler, 126 Ill. 525; 9 Am. St. Rep. 642; 2 Bish. Mar. Div. & Sep. ยงยง 1103, 1104, and cases cited.) This principle controls when the conveyance is made before the divorce proceedings are commenced, but in anticipation of them. (Damon v. Damon, 28 Wis. 515; Green v. Adams, 59 Vt. 602; 59 Am. Rep. 761; Bailey v. Bailey, 61 Me. 361.)' It will be observed that the wife had a decree for separate support, for alimony, and that it was necessary to learn what title her husband had in the land for the very purpose of fixing the amount of the alimony and that the deed was void as to her for fraud. I find nothing substantial in this decision to aid the bare complaint in question, as the plaintiff alleges nothing beyond a mere prayer to set a deed aside because given in anticipation of abandonment.

Tyler v. Tyler (126 Ill. 525) was an action in equity for the reconveyance of property by a father conveyed to the son to delay, hinder and defraud the former's wife in the assertion of her right to a separate maintenance. The conveyance was made after separation, a publication by the husband that he

Page 191

would not pay her bills, and in anticipation of proceedings for separation, which were instituted after the conveyance and before the bill for reconveyance was filed. The principle applied merely was, that where a husband conveys his property to defraud his wife in the matter of support, the court will not aid him to recover it. The wife did not ...

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