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Johanna and Julius Kalish et al. v. Luke Higgins.

such a conveyance must go further and show by other evidence that it was made with the fraudulent intent condemned in the statute. An owner of real estate can make a voluntary settlement thereof upon his wife and children without any consideration, provided he has ample property left to satisfy all the just claims of his creditors. If the grantor remains solvent after the conveyance and has sufficient property left to satisfy all his just debts, then the conveyance, whatever his intention was, cannot be a fraud upon his existing creditors; and when a judgment creditor assails a conveyance made by the judgment debtor he cannot cast upon the grantee the onus of showing good faith and of establishing that the grantor was solvent after the conveyance by simply showing that the deed was not founded upon a valuable consideration. But the person assailing the deed assumes the burden of showing that it was executed in bad faith, and that it left the grantor insolvent and without ample property to pay his existing debts and liabilities; and so it has been repeatedly held." This opinion but reiterates a rule that has always been the law as shown by the authorities cited. If this is the law, then, upon the facts stated, there is no justification for a finding that this conveyance defrauded the plaintiffs, or anyone, or was made with such an intent; and the burden of proof being upon the plaintiffs to show the fraudulent intent, and there being no evidence to show such intent, the finding of the trial judge of such an intent is unsupported by the evidence.

There are several rulings upon questions of evidence which it is not necessary for us to consider upon this appeal, as a new trial must be ordered. It is proper, however, to call attention to the fact that the declarations of Luke Higgins, the grantor, made after the conveyance, are not evidence as against Elizabeth Higgins, the grantee,

Augusta G. Genet v. The President, etc., D. & H. C. Co.

to show fraud in the transaction; nor would the fact that one of the defendants, was called as a witness and testified to facts which are inconsistent with a fraudulent intent, and that the court refused to believe his testimony, be evidence from which the court could find a fraudulent intent.

We think the evidence in this case was entirely insufficient to justify a finding of any fraudulent intent as to either of the parties to the conveyances, and for that reason the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concur.

S$ 1022, 1209.

Judgment roll. Competency as evidence in bar to subsequent action. A judgment roll, in a former action, is not competent evidence in bar to a subsequent action between the same parties, when the judgment in the earlier action does not expressly declare that it was rendered upon the merits, or it does not so appear in the judgment roll. It is not sufficient, in order to constitute a bar, that it may be inferred, merely, from the record that the judgment was entered upon the merits, or that it so appears from papers in the case outside the judgment roll (Code Civ. Pro., sec. 1209).

(Decided April, 1902.)

Appeal from a judgment of the Appellate Division, First Department, affirming a judgment of the Special Term dismissing the complaint.

Augusta G. Genet v. The President, etc., D. & H. C. Co.

This is the sixth action between the same parties that has come to this court, all of them arising out of a contract for the mining of coal on certain lands located at Scranton, in the State of Pennsylvania.

The plaintiff and her husband, George C. Genet, are described as parties of the first part in this contract, and the defendants as parties of the second part. The instrument bears date March 28, 1864, and the plaintiff was at the time of the execution of the contract, and is now, vested with the fee of the lands in question.

The first action decided by this court is reported in 122 N. Y. 505; the second, 136 N. Y. 593; the third, 163 N. Y. 173; the fourth and fifth, 167 N. Y. 608. It is unnecessary to recite this contract in full, as it will be found, except description of premises, in the report of this case when first tried at Special Term (13 Misc. Rep. 409); its material provisions are also discussed in 136 N. Y. 593, and 122 N. Y. 505.

The present action was begun in the Superior Court of the city of New York on February 2, 1893. It is based on a notice in writing dated February 1, 1893, signed by the plaintiff and her husband, and served on defendants, which is in substance an election to terminate the contract on the ground that, the defendants having ceased to mine. coal on the premises, and a reasonable time having elapsed thereafter, the contract being executory, may be terminated by the parties injured.

The prayer for relief is, that it may be adjudged that the contract has been executed and ended and that defendants have no further rights thereunder, and that they be compelled to vacate the premises; that defendants account to plaintiff for damages she has sustained; that she be compensated for the benefit and advantage to defendants for mining of coal from their own land through the

Augusta G. Genet v. The President, etc., D. & H. C. Co.

"Marvin Shaft" on a certain basis set forth; that de fendants be enjoined from claiming any further rights under the contract.

The answer puts in issue the material allegations of the amended complaint, challenges the jurisdiction of this court, pleads the Statute of Limitations, adequate remedy at law, waiver and judgment in a former action in bar. There have been three trials of this action. On the first trial there was a decision for the defendants, the court holding, among other things, that the agreement was, in legal effect, a conveyance to the defendants of the coal in place, as land (13 Misc. Rep. 409). The Appellate Division reversed this judgment on the ground that the decision as to the agreement being a deed of land was in conflict with a decision of this court construing the contract, reported in 136 N. Y. 593 (Genet v. D. & H. C. Co., 2 App. Div. 491). At the second trial there was a judg ment for the plaintiff, which was reversed by the Appellate Division on the ground that plaintiff, by suing to enforce the contract and accepting the royalties under it, had waived the right to terminate (Genet v. D. & II. C. Co., 28 App. Div. 328). The third trial resulted in a judg ment dismissing the complaint on the merits, which was unanimously affirmed by the Appellate Division. The latter judgment is here for review.

The trial judge adopted the short form of decision, under section 1022 of the Code of Civil Procedure, and has stated concisely the grounds upon which the issues have been decided, and directed judgment thereon dismissing the complaint on the merits.

The principal question is whether there was legal error in admitting in evidence, over the objection and exception of the plaintiff, the record of a judgment between the same parties, entered upon the decision of the Second

Augusta G. Genet v. The President, etc., D. & H. C. Co.

Division of the Court of Appeals, reported in 122 N. Y. 505. The plaintiff's counsel stated at the trial that he did not object, so far as the judgment appealed from by the plaintiff was affirmed, but did object to it so far as the judgment in favor of the plaintiff was reversed, on the ground that it is not res adjudicata. This objection was overruled and plaintiff duly excepted.

The complaint in the action which resulted in the judg ment was between the same parties as in the present action, and based upon the same contract; but the judg ment, on the remittitur from this court, adjudging that those parts of the judgment appealed from by the defendants be reversed and complaint dismissed, does not declare in terms that the dismissal was on the merits.

David B. Hill, for appellant.

Frank E. Smith and David Willcox, for respondents.

PARKER, Ch. J.-The court erred in admitting in evidence the judgment roll in the former action between these parties entered on a dismissal of the complaint ordered by this court on appeal and reported in 122 N. Y. 505, inasmuch as it is not expressly declared in the judgment that it was rendered upon the merits and it does not so appear in the judgment roll. It is not sufficient for a party, who sets up a prior judgment as a bar or seeks to introduce it as conclusive evidence, to produce a record showing a judicial determination in his favor of the question in litigation. He must further show, and by the judgment roll, that the judgment was rendered upon the merits and cause it to appear that the question was a material one in the former action. Webb v. Buckelew, 82 N. Y. 555; VOL. 33-2

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