Cohen v. Knox

McFarland, J. — In the year 1883 there was a treaty or agreement of marriage pending between the plaintiff, then a young unmarried woman, and Alfred H. Cohen. Cohen was then a young lawyer just beginning the practice of his profession, and having no income or means sufficient to procure a home and support a family; and they were both unwilling to get married until they had a home. These facts coming to the knowledge of Watson A. Bray, the father of plaintiff, he concluded, in order to encourage the consummation of said marriage, to convey to plaintiff a lot of land and build a house thereon as a home for the young couple, provided the father of said Cohen would furnish it. After some conferences between the said Bray and the father of said Cohen, the proposition was accepted by the latter; whereupon Bray, on July 12,1883, conveyed a lot of land, being the premises described in the complaint herein, to the plaintiff, then Emma Bray, and proceeded immediately to build a house thereon, which was completed in the early part of 1884. This was done with the knowledge of Cohen, and he was consulted about it. The house was furnished by said Cohen’s father. In February, 1884, plaintiff and [272]Alfred H. Cohen were married, and moved into the house, where they have lived every since. It is found by the court, and clearly established by the evidence, that the said conveyance of said lot to plaintiff, and the construction of said house thereon, were the consideration wh ch induced said marriage, without which it would not then, if ever, have been consummated. The value of the lot and the cost of the house amounted at the time to about sixteen thousand dollars, and the present value of the property is eighteen thousand dollars.

At the time of the conveyance of said lot to plaintiff and the building of said house, the said Bray was the owner of several hundred thousand dollars’ worth of property, and supposed himself to be worth a quarter of a million of dollars. The conveyance was not made with any design on his part to hinder or defraud creditors (whether that fact he material or not); and it is entirely clear that plaintiff and her husband believed him to be a man of large means, and fully able to make the said provision for her marriage, and that she accepted the same without any intent of hindering or defrauding his creditors. It turned out afterwards, however, that said Bray was in fact insolvent at the time said conveyance was made to plaintiff.

On said July 12, 1883, the date of said conveyance to plaintiff, said Bray was indebted to the defendant Charles C. Knox in an amount exceeding $60,000; and on August 12, 1885, said Knox recovered judgment against said Bray for $79,218. On April 26, 1887, Knox caused an execution to be issued on said judgment, and delivered the same to the sheriff, with instruction to levy it upon said lot conveyed by said Bray to plaintiff, as aforesaid, as the property of said Bray. The sheriff made said levy, and was about to sell said lot, when the plaintiff brought this present action to restrain such sale, upon the ground that it would cast a cloud upon her title. The court gave judgment for plaintiff according to her