act imposing this tax, a clause exempting from such tax any corporation of which the consolidating companies or one of them had already paid a similar tax. But that was not done; and it would be judicial legislation for us to construe the statute as if such a clause had been inserted. We have only to inquire what the legislature meant. And they must be held to have meant what they said. It is true that the relator presents a strong equity when it urges that the tax has already been paid on the same amount of capital employed in the same business, and practically by the same parties. But we cannot yield to this equity in violation of the language of the statute. There is nearly always something arbitrary and inequitable in taxes and tariffs, which courts cannot remedy. The order appealed from is affirmed, with fifty dollars costs and disbursements. LANDON and MAYHAM, JJ., concur. SAMUEL T. GUILFORD, App'lt, v. JOSEPH B. MILLS, as Sheriff, etc., Resp't. (Supreme Court, General Term, Third Department, Filed September 25, 1890.) 1. REPLEVIN-POSSESSION SUFFICIENT TO MAINTAIN. Possession is sufficient to maintain the action of replevin and one who takes property out of the hands of the person in possession must defend his act upon his own title and cannot do so by showing title in another. 2. SAME. The property in question belonged in March, 1888, to B. & C., who in February, 1889, gave a chattel mortgage upon it to plaintiff. On March 6, 1889, plaintiff took possession of it and on the 29th sold and bought in the property and kept it until April 20. On April 12th, B. & C. made an assignment. On April 20 the sheriff levied upon it under executions against B. & C. It is now claimed. that the chattel mortgage was fraudulent. Held, that if the mortgage was valid defendant had no case; if fraudulent the title was in the assignee, with whose title the defendant could in no way connect himself, and hence could not justify the taking. APPEAL from a judgment for defendant entered on the report of a referee. E. T. Brackett, for app'lt; L. H. Northup, for resp't. LEARNED, P. J.-This is an action of replevin. The property in dispute belonged in March, 1888, to Crandall and Boynton. In February, 1889, they executed a chattel mortgage thereon to the plaintiff. About the 6th of March, 1889, the plaintiff took possession of the mortgaged property. On the 29th of March, 1889, the plaintiff sold the mortgaged goods by virtue of the mortgage, bid them in and retained the possession until April 20, 1889. On the 12th day of April, 1889, Crandall and Boynton made a general assignment to L. L. Davis. On the 20th day of April, 1889, the defendant as sheriff made a levy on the goods in question and took them from plaintiff's possession by virtue of several executions issued upon judgments recovered upon liabilities of Crandall and Boynton arising prior and subsequent to the 14th day of February, 1889. This case was tried before a referee who dismissed the com plaint; and from the judgment entered on his report the plaintiff appeals. The appeal is heard on the judgment-roll only, no case having been made. The facts above stated appear in the referee's report. There are other findings in the referee's report in regard to the permission by the plaintiff to Crandall and Boynton to continue in possession and to carry on business after the mortgage; upon which facts the referee finds as conclusion of law that the mortgage was fraudulent and void as to creditors. The plaintiff urges that there is no finding of fact that the mortgage was fraudulent, and that the facts found upon which the referee finds as matter of law that the mortgage is fraudulent are insufficient to support that conclusion. It does not seem to us necessary here to decide whether, on an appeal upon the judgment-roll solely, the court should reverse the judgment because sufficient facts are not found to compel logically the conclusions of law. We have held in other cases that we ought not to reverse a judgment solely on the ground that the facts found by the referee did not necessarily compel his conclusions of law, although they were consistent with such conclusions. Where the evidence is not before us, we may reasonably presume that enough was proved on the trial to make out the additional facts which the referee has not found, and which with those which he has found, would logically lead to his conclusions of law. But in the present case the plaintiff urges that the facts actually found by the referee compel à different conclusion of law. Admitting, for the sake of the argument, that the mortgage was fraudulent as to creditors, it is nevertheless a fact that the plaintiff, from the 6th of March down to the day of the levy, was in possession under it. Such possession gave him a right to maintain replevin against any one who took the property as the defendant did. The defendant then must show a right to the property in order to justify his taking; this he can only do by connecting himself with the title of Crandall and Boynton, and showing also that plaintiff's title derived from them is fraudulent as to defendant, representing creditors. But the referee has found that eight days before defendant made a levy Crandall and Boynton made a general assignment to L. L. Davis. Now, if plaintiff's chattel mortgage is good as to creditors, clearly defendant has no title. If plaintiff's mortgage is fraudulent as to creditors, then Davis, the general assignee, has, under the well known statute, the right to set it aside, and the title to the property is in him. The learned referee, in his opinion, refers to this matter, and says that if the assignment is valid it vests the title in the assignee, and if the plaintiff shows title in another that defeats his action. But the mistake is that possession alone is sufficient to maintain plaintiff's action. If the defendant is to justify his taking of the property out of plaintiff's possession he must prove a title in himself. To prove a title in Davis does not justify the defendant in taking away property from plaintiff's possession, unless the defendant acts under authority of Davis; and that he does not do. It is very plain that the man who takes property from my possession cannot defend his act by showing that the property belongs to my neighbor; unless he acts by that neighbor's authority. Wheeler v. Lawson, 103 N. Y., 40; 2 N. Y. State Rep., 791; Loos v. Wilkinson, 110 N. Y., 195; 18 N.Y. State Rep., 110. If the facts were such that the defendant had shown also that the assignment to Davis was fraudulent as to the creditors represented by him, then he would have avoided the difficulty which now meets him. By sweeping away as fraudulent both the chattel mortgage and the assignment he would then, through his executions, have connected himself with the title of Crandall and Boynton and would thus justify his violation of plaintiff's possession. If he But if that assignment is not fraudulent, then the assignee has the right to attack the alleged fraudulent chattel mortgage. will not do this, creditors can bring the action in aid of the assign ment. As this case, however, now stands upon the findings of fact, we think that the complaint should not have been dismissed. Judgment reversed, new trial granted, referee discharged, costs to abide event. LANDON and MAYHAM, JJ., concur. HARRIET MCDONALD, Resp't, v. MARIA MCDONALD et al., App'lts. (Supreme Court, General Term, Third Department, Filed September 25, 1890.) 1. FRAUDULENT CONVEYANCE-INSOLVENCY. In an action to set aside certain conveyances of property, real and personal, as fraudulent, the referee did not find the insolvency of the fraudulent grantor, but he did find that by the transfers the grantor had divested herself of all her property. Held, sufficient to sustain the judgOne who has debts and no property must be insolvent. ment. 2. SAME-EXEMPT PROPERTY. Among the personal property was furniture, said to be exempt. Held, that creditors were not entitled to this, and that it should be excepted from the effect of the judgment. APPEAL from judgment setting aside as fraudulent certain transfers and conveyances. E. J. Maxwell, for app'lts; C. S. Nisbet, for resp't. LEARNED, P. J.-The plaintiff recovered on the 10th day of July, 1888, a judgment against Maria McDonald on an indebtedness which arose August 6, 1877. Execution was returned unsatisfied and this action was brought to set aside conveyances of property made by Maria McDonald to her daughter, Carrie S. McDonald, and by said Carrie S. to one Lillie S. Stevenson. Maria in 1884 conveyed the Main street property to Carrie S. without any valuable consideration. This conveyance was not set aside by the judgment. In January, 1889, she conveyed to the same grantee, for no valuable consideration, the Spring strect property. By bill of sale in July, 1888, she conveyed to her all her personal chattels. In May, 1889, she paid to her the proceeds of bank stock amount ing to about $2,000 and assigned to her a contract on which was to come due $2,400. There was no valuable consideration for any of these transfers and they divested Maria of all property whatever. By a deed dated July, 1888, Carrie S. conveyed the Main street property, and by a deed dated April, 1889, the Spring_street property, to Lillie S. Stevenson. În July, 1888, Carrie S. conveyed to said Lillie S. the personal property she had that same day received from Maria. For this there was no consideration. The alleged consideration for the conveyances of land to Lillie S. Stevenson are very suspicious, according to her own account of the transactions. And upon the argument of the case the defendant's counsel did not attempt to strengthen his position by any reliance on those conveyances. His claim is that the conveyances of the Spring street property and of the personal chattels to Carrie S. which were set aside by the judgment were valid and should be sustained. It is unnecessary then to inquire whether Lillie S. Stevenson has any better title than Carrie S. has. The transactions with her are only important as they may serve to give a coloring to the whole proceedings. Lillie S. Števenson is no relative of Maria or of Carrie S., but she had been living with them for some four years at the time of the trial and was then so living. The personal chattels above mentioned were the furniture, household goods, carriages and horses used by Maria in her house, the Main street property. Carrie S. did nothing about taking possession of the personal property. No inventory was made of it. And at the time both Carrie S. and Lillie S. Stevenson lived in the house with Maria. There was no actual change of possession, and Maria continued practically in the enjoyment of the personal property. The ap The learned justice who tried the case decided as a matter of fact that the conveyance to Carrie S. of the Spring street property and the bill of sale to her of the household property were made by Maria with intent to hinder, delay and defraud creditors, and further that the conveyance of the Spring street property to Lillie S. Stevenson and the bill of sale to her were made with like intent. These are findings of the trial court, and unless they are contrary to the evidence should be binding upon us. pellant urges that there is no finding of the insolvency of Maria. But such insolvency is only part of the evidence, on which fraudulent intent may be found. As the referee found the fraudulent intent, he did not need to find all the evidence which led him to that result. But he does find that by these transfers Maria divested herself of all her property. If she had no property and owed debts she must have been insolvent. He further finds that these transfers were made and entered into by the defendants as part of a fraudulent scheme and conspiracy to divest Maria of all her property so that plaintiff should be unable to collect her debt. It is true that a conveyance is not necessarily fraudulent as to creditors because it is voluntary. But conveyances which put all of a debtor's property out of his hands and which are made with The out consideration, are almost conclusive evidence of fraud. debtor thereby deprives himself voluntarily of all means of paying his debts, and this he has no right to do. We have examined the evidence in this case, and we think there are the plainest indications of fraud. As the appellant on the argument practically gave up all claim that Lillie S. Stevenson had any better title than Carrie S., we need not discuss the testimony as to her alleged transaction. We are satisfied that she is in no better position than Carrie S. And as to Carrie S., we think the finding of the special term is fully sustained. There is one single point suggested by the appellant which should have some further consideration. We do not know whether it was fully presented to the special term. The bill of sale of the personal property is stated to have included furniture, etc. Apparently then it included exempt property. As to such exempt property the creditors of Maria were not defrauded. Therefore, any property which would have been exempt from execution against Maria should be excepted from the effect of the judgment. With this modification the judgment is affirmed, with costs. MARY ROE, Resp't, v. JOHN DOE, App'lt. (Supreme Court, General Term, Third Department, Filed September 25, 1890.) 1. BREACH OF PROMISE-CONTRACT MUST BE PROVED. Where plaintiff sues for breach of contract of marriage, she must prove the contract by a preponderance of evidence, and although seduction is charged, the jury cannot be allowed by their verdict to punish defendant where no such contract is legally shown. 2. SAME. Where the acts towards and letters of plaintiff to defendant were of a character likely to result from an improper intimacy only, and where the letters, especially, were of a nature inconsistent with an engagement and nowhere contained any allusion to marriage, a verdict for plaintiff must be held as against evidence. APPEAL from a judgment in favor of plaintiff entered upon. a verdict for $3,000, and from an order denying a motion for a new trial on the minutes. The action was for damages for an alleged breach of contract of marriage. T. F. Bush, for app'lt; T. A. Read, for resp't. LEARNED, P. J.-No error of law was committed by the learned justice on the trial of this case. No exception was taken to the charge, and hardly an exception to the rulings. But the verdict of the jury is contrary to evidence and must be set aside. The action is for breach of contract of marriage. At the time of the alleged contract the plaintiff was a girl of nineteen, the defendant a few years older. There had been illicit connection between the parties for a considerable time; and the important N. Y. STATE REP., VOL. XXXIII. 6 |