N. J.)

CARLING v. CARLING

567

ticing medicine, although he does mention that in January, 1905, he went to Philadelit in his rebutting evidence.

The mining interest was little more than a myth. Such as it was, it consisted of "prospecting" in the Black Hills, which, he says, could be reached in a shorter time from New York than from Sioux Falls, and of $200 in stock. He had visited these hills the year before. It does not appear that he revisited them, or that the stock ever acquired any value.

phia after him, and that he took him to South Dakota. He adds: "I intended to stay there until I could take my examination [whether in Dakota or Colorado he does not say], but I decided to go to Colorado, which I thought would benefit my brother more than myself." The landlady, Mrs. Phillips, says that his brother stayed for a short time at her home, but that she never heard of the lung trouble. The brother himself is not called as a witness, and what became of him after he went to Denver, or what defendant was able to do for him, does not appear. Whether the Philadelphia trip was taken before or after the divorce was obtained, the defendant does not state with certainty. His vague statements in reference to his brother's health do not help him much. They do little more than indicate the ease with which he could change his purpose.

As to the land in the Rosebud reservation, it appears that immediately after reaching Dakota he went to some town, whose name he cannot recollect, and signed his name to some paper which would entitle him to a drawing, and, if he were the lucky man, to a valuable tract. He paid out no money for the privilege. He was not present at the drawing, and did not in fact draw anything. He at once lost all interest in the subject. Taking his own statement of the objects While it thus appears that the defendant which were potential in inducing him to se- gave up his residence in New Jersey, it does lect Dakota as a place of permanent resi- not appear that he took up a new residence dence, it is apparent that they did not ma- in Dakota for any other purpose than to get terialize. He might have decided to remain a divorce. The animus manendi in Dakota there for some other reason, but he did not. is not proved. That defendant left New JerHe appears to have very soon formed the sey for the purpose of getting a divorce in purpose of going to Denver. Norman H. South Dakota is perfectly plain. He had no Squires, a perfectly disinterested witness other substantial reason for going. He had with whom he played golf in July and Au- a practice in New Jersey, and he had none gust, 1904, says that in one of those months in Dakota. He had, as I have said, no busiDr. Carling told him that he thought he ness or professional engagement to draw would like to go to Denver to practice. Aft- him there. He had no friends or acquainter failing to draw anything, what more like- ances there. On his own statement, it may ly than that, seeing no immediate opening be inferred that his intention to remain was in Sioux Falls, or elsewhere in South Da- conditioned on his drawing a government alkota, he should make up his mind to go to lotment in the Rosebud reservation. This he Denver to practice his profession. The men- failed to do, and having failed he directed tion of such a determination to the acquaint- his attention to Denver. He spoke of going ances that he formed there may possibly ex- to that city within two months after he arplain why he brought his suit in Lincolrrived in Dakota. His conduct during the county, rather than in Minnehaha county, fall of 1904 and the winter of 1905, so far where his attorney had his office and he himself was living. The case, he says, was actually tried, not in open court, but before a judge at his residence in the town of Mitchell. Whether the trial took place in Lincoln county or in some other county does not clearly appear. It does appear that the action was not tried in the place of his residence, and of the reason for this mode of procedure. the defendant can give no explanation. Now, the papers were served upon Mrs. Carling, in New Jersey, in time to defend. He could not therefore have intended to perpetrate the fraud practiced in the Doughty Case. Doughty v. Doughty, 28 N. J. Eq. 581. It is possible that Dr. Carling may not have cared to testify in open court, in Sioux Falls, to a fixed purpose to remain in Dakota if he had talked of his intention of going to Denver; but this is mere conjecture.

The doctor, to explain his conduct in leaving Dakota so soon after obtaining his divorce, says that his brother had lung trouble;

from indicating an intention to remain in Dakota, rather indicates the contrary. He made no effort to secure a permanent position of any sort, or to settle down to the practice of his profession. He was able, within a month or two after reaching Denver, to secure a license to practice in Colorado, and, provided as he was with a New Jersey certificate, it is not likely that he would have found more difficulty in securing one that would have enabled him to practice in Dakota. His very vague statement, "I decided to go to Colorado [when he decided, he does not say], which I thought would benefit my brother more than myself," only emphasizes the absence of definite purpose to make Dakota his home. And so the violent presumption arising from his primary purpose in going to Dakota, and from his actually leaving Dakota shortly after he obtained the decree, is strengthened, rather than overcome, by his conduct and declarations during his compulsory six months residence there. The case does not differ in

principle from Streitwolf v. Streitwolf, 58 | for railroad purposes generally was substanN. J. Eq. 563, 41 Atl. 876, 43 Atl. 683, 78 Am. St. Rep. 630; Id., 181 U. S. 179, 21 Sup. Ct. 553, 45 L. Ed. 807. I think the plea is not sustained.

(82 N. J. L. 21)

tially identical with their value under a special franchise for railroad use. That is a question of fact, and we cannot say that it is not so.

The valuation on which the present assessments were made is supported by the return of the state board to which the Legislature

LONG DOCK CO. v. STATE BOARD OF has given express authority "to use their

ASSESSORS.

MORRIS & E. R. CO. v. SAME. CENTRAL R. R. OF NEW JERSEY v.

SAME.

personal knowledge and judgment as to the value of property." It is also supported by some of the testimony taken under these writs while opposed by other testimony so

(Supreme Court of New Jersey. Nov. 20, 1911.) taken. We are unable to say that the latter

(Syllabus by the Court.)

TAXATION ($ 493*)-ASSESSMENT-REVIEW BY
COURT.

Where no principle of law is involved, and no preponderance of testimony exists in favor of the prosecutor, the judgment of the state board of assessors upon a question of value will not be disturbed.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 876-883; Dec. Dig. § 493.*]

Certiorari, on the relation of the Long Dock Company and others, to the State

Board of Assessors to review assessment for taxes. Assessment affirmed.

Argued February term, 1911, before GARRISON, PARKER, and VOORHEES, JJ.

testimony so preponderates as to overcome the judgment of the board and the testimony that supports it as to make it our clear duty to substitute our judgment for that of the state board upon a question of value. If it were a question of law, our opinion might be of more worth than that of an administrative board, but upon a question of value the presumption is rather the other way.

The values placed on these terminal lands by the state board will not be disturbed. The assessments brought up by these writs are affirmed.

(78 N. J. E. 365) MCNULTY v. McCARTHY.

1911.)

Collins & Corbin, for Long Dock Co. W. D. Edwards, for Morris & E. R. Co. George (Court of Chancery of New Jersey. Feb. 21, Holmes, for Central R. R. of New Jersey. R. V. Lindabury and James J. Murphy, for Jersey City. Warren Dixon, George, L. Record, and Horace L. Allen, for City of Hoboken. Edmund Wilson, Atty. Gen., for the State.

GARRISON, J. The assessments for taxes brought up by these writs must be affirmed. No legal principle is involved. The value of property is the sole matter of dispute.

By a previous decision of this court that has been affirmed by the Court of Errors and Appeals (80 Atl. 1135), the principle was laid down that in the assessment of second-class railroad property the additional value imparted to such property by its use under a railroad franchise should not be included. Long Dock Co. v. State Board of Assessors, 78 N. J. Law, 44, 73 Atl. 53.

(Syllabus by the Court.)

1. FRAUDULENT CONVEYANCES (§ 208*)-TRUST DEED-FUTURE CREDITORS.

After examination of the trusts created and declared in a trust deed dated April 1, 1895, in a creditor's suit to satisfy a judgment out of land conveyed by a judgment debtor (the settlor) to a trustee for himself and his children, where it appeared that the complainant's debt was contracted after 1902, and the judgment recovered October 25, 1905, held, that such deed is a fraudulent device as to all the future creditors of the settlor.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 631, 633; Dec. Dig. 2. FRAUDULENT CONVEYANCES (§ 64*)—FRAUD§ 208.*] ULENT INTENT-SUBSEQUENT DEBTS.

Under the authority of Washington National Bank v. Beatty, 77 N. J. Eq. 252, 76 Atl. 442, the rule seems to be now settled in this state that a voluntary conveyance made with actual fraudulent intent is void as against any subsequent creditor of the grantor, although his debt was contracted long after the then contemplated by the grantor as a possivoluntary conveyance is made, and was not bility.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 159-161; Dec. Dig. § 64.*]

This principle the state board has observed In making the present assessment. The opinion in the case cited also held that the market value of terminal property due to its availability for railroad purposes generally was a legitimate basis for its assessment for taxation. This value the state board has assessed in the present case. The fact that the present assessment does not greatly vary from the previous one does not involve the violation of any principle of law, or show that the legal principles laid down for the guidance of the board have been disregarded. All that it shows is that in the judgment of the board the value of these terminal lands§ 312.*]

3. FRAUDULENT CONVEYANCES (§ 312*)-SET

TING ASIDE-INTEREST OF GRANTOR.

As between the judgment debtor and the trustee and his children, such deed is valid and will be set aside only so far as is necessary to pay the complainant's debt.

Conveyances, Cent. Dig. §§ 963-965; Dec. Dig. [Ed. Note. For other cases, see Fraudulent

think best for the interest of his children "(9) In case of the death of any of said hereinafter named and to collect and receive children of said party of the first part, withall of the rents and income from the same out leaving lawful issue and before the conand apply same to such purposes as he may veyance to him or her of the property above desire during the term of his natural life. described, as herein before directed, then he "(2) That he will at any time when re- will hold the property which would have quested in writing so to do by party of the been conveyed to such child so dying, if he first part, convey to Anna Winberry, daugh- or she had lived to receive such conveyance, ter of said party of the first part, the prop-in trust for the use and benefit of the surerty situate upon Wayne street, being the property herein before second above described, to have and to hold to her, her heirs and assigns, forever.

"(4) That he will at any time when requested so to do by said party of the first part in writing, convey to William Winberry, the son of said party of the first part, the STEVENSON, V. C. (after stating the facts farm situate in Rockland county, New York, as above). [1] 1. My conclusion of fact is being property hereinbefore first above de- that the whole trust in question was a scribed, to have and to hold unto said Wil-fraudulent device as to all the future cred*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

itors of the settlor. It is, in my opinion, a transparent scheme to enable Mr. Winberry to enjoy the full control and use of all his property, or the more valuable part of it, while he could contract debts with impunity. In case a creditor should become urgent and proceed to apply to his debt whatever beneficial equitable interest Mr. Winberry reserved to himself in the trust estate, he (Mr. Winberry), according to the terms of the trust, could disappoint the pressing creditor by calling upon the trustee to convey the estate to his (Winberry's) children in the prescribed portions. Mr. Winberry thus had a string on the several portions which he intended to allot to his children which enabled him to remain practically the owner of his estate for his own uses and purposes, while he would have nothing to satisfy any debts which he might thereafter contract. It certainly would be discouraging to a creditor to undertake to reach the equitable life interest of Mr. Winberry when, at the end of an expensive litigation like the present one, the whole life estate could be terminated at the word of Mr. Winberry and the entire estate become vested in his children.

[2] In my judgment the law ought not to tolerate, and does not tolerate, such devices. The fraudulent intent extends to all future indebtedness. I think this is a case of ac ́tual fraud which directly affects all debts which Mr. Winberry might contract at any time after the trust conveyance was made. [3] 2. As between Mr. Winberry and the trustee and his children the conveyance in trust of course is valid. The conveyance will be set aside only so far as is necessary to pay the debt of the complainant.

4. On account of the peculiar character of the trust by which the attempt is made to enable Mr. Winberry to distribute his estate among his children whenever his life estate is attacked, it may not be important to provide in the decree for the exhaustion of the life interest before recourse is had to the interests of the remaindermen. ter may be determined upon settlement of the decree.

[5] In case recourse is had to the interests of the remaindermen, provision, perhaps, may be made in the decree for apportioning the complainant's debt equitably among the different shares. My recollection is that the share of one child consists of land situate in the state of New York. How far equality of burdens among the children may be incidentally effected while granting the complainant the relief to which he is entitled may also be determined upon settlement of the decree. This matter has not been the subject of argument, and possibly it may be proper to take some additional testimony. It occurs to me, whether an appeal is taken or not, that this matter may be reserved. If the complainant's debt is to be paid out of this entire estate, it may be surmised that the defendants may avoid having the decree adjust any equities inter sese, if they are all now of full age, by making arrangements satisfactory to themselves.

The foregoing memorandum was furnished to counsel as a sufficient exposition of the theory upon which the decree in favor of the complainant was based. If when this memorandum was prepared I had had the benefit of the opinion of Judge Dill, written 3. In my opinion under the first paragraph for the Court of Errors and Appeals in the defining the trust, Mr. Winberry takes a life case of Washington National Bank v. Beatty estate in the rents and income of the es- et al. (June 21, 1910) 77 N. J. Eq. 252, 76 tate which amounts to the same thing as Atl. 442, the decree might also have been an equitable life estate in the corpus. He is stood upon another ground. Probably the expressly allowed to manage and control the somewhat uncertain condition of our law. property and to apply the rents and income which the above-cited case cleared up, imto "such purposes as he may desire during pelled me to avoid the discussion of several his natural life." It is impossible to find questions which were fully argued by counthat there is any intention here that the in- sel in regard to the nature of the fraudulent come shall be applied only to purposes re-intent of the settlor requisite to make his lating to the support or welfare of the children. The requirement that he shall manage and control "as he may think best for the interest of his children" indicates to my mind only a cunning intention to make it appear that the children are equitably interested in the income during Mr. Winberry's lifetime, while in fact such is not the case. This provision savors of fraud and deceit. Mr. Winberry is to manage and control the corpus for the interest of his children while he can apply the income to all "such purposes as he may desire."

[4] The equitable interest of Mr. Winberry is primarily liable for the debt and should be exhausted before recourse is had to the interest in remainder belonging to the chil

gift void as against debts subsequently contracted, and not within the scope of his actual fraudulent intention. In this case of Washington National Bank v. Beatty the opinion contains what purports to be a deliverance of the entire court, which, although not necessary to the decision of the case, must, I think, be regarded as settling the law of the state so far as this court is concerned.

Under the authority of this decision, or this deliverance, this voluntary settlement by Winberry must be regarded as void as against the complainant's debt, which began to be contracted eight years later, and was plainly entirely beyond the contemplation of Winberry when the trust deed was made in

BACHE v. CENTRAL LEATHER CO.

BACHE et al. v. CENTRAL LEATHER CO. the officers and directors for the current year

(Court of Chancery of New Jersey. March 3, to be voted on at the annual meeting. They

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes