Consideration
[63-1 USTC
¶9172]
United States of America
, Plaintiff v. David Milloff,
Florence
Milloff, Simon Milloff,
Metropolis
Building
Association, Harry Milloff, Abraham Goldkind and Louis Yudelevit and
Rob
ert W. Kidwell, Trustees, Defendants
U.
S. District Court, District of Columbia, Civil Div., Civil Action No.
1871-59, 12/8/61
[1954 Code Sec. 6321]
Lien for taxes: Priority of liens: Attempted conveyances in fraud of
creditors.--A notice of a government tax lien for delinquent income
taxes filed on September 1, 1949 at 11:34 A. M. is effective against an
attempted conveyance of real estate on the same date, at 12:36 P. M. A
prior deed of trust recorded October 27, 1948, purporting to secure
notes for $13,000, was made without consideration and in fraud of
creditors, as was also still another deed of trust recorded on September
6, 1949, purporting to secure a note for $1,300.
David C.
Acheson, United States Attorney, Washington, D. C., Louis F. Oberdorfer,
Assistant Attorney General, Richard M.
Rob
erts, Paul T. O'Donoghue, Department of Justice, Washington 25, D. C.,
for plaintiff. David Milloff, Florence Milloff, pro se, 6503 N.
Capitol St., Herman Miller, Bernard P. Platshon, 421 4th St., N. W.,
Frank E. Scrivener, Perpetual Bldg., Mark P. Friedlander, Shoreham
Bldg., Benjamin Simon, 1345 14th St., N. W., Washington, D. C., for
defendants.
Findings
of Fact and Conclusions of Law
HART, District
Judge:
This cause
came on for trial on the 30th day of November, 1961, and the Court,
having heard the evidence and considered the stipulations of fact made
at the pretrial hearing hereof, finds the facts and states the
conclusions of law as follows:
Findings
of Fact
1. Defendant,
David Milloff, acquired Lot 834 in Square 424, in the
District of Columbia
, as a devisee under the Will of his mother, Kate Milloff.
2. The said
Defendant, David Milloff, by deed dated May 28, 1943 and recorded in the
Land Records of the District of Columbia on June 2, 1943, conveyed a
three-fourths interest in said property to his two brothers, Simon and
Sigmond Milloff, and his sister, Jean Milloff Gold.
3. That
thereafter, on
March 27, 1944
, Jean Milloff Gold and Sigmond Milloff and his wife conveyed their
one-half interest in said property to David Milloff and Simon Milloff as
tenants in common. This deed was recorded in the Land Records of the
District of Columbia
on
May 19, 1944
.
4. Three years
later, on the 19th day of May, 1947, David Milloff, his wife Florence
Milloff, and Simon Milloff, executed a deed of trust to secure the
Metropolis Building Association for a loan obtained from it. This loan
has now been paid and released of record.
5. On
October 27, 1948
said David Milloff, Florence Milloff his wife, and Simon Milloff,
unmarried, put on record an alleged deed of trust to secure an alleged
note payable to the order of Harry Milloff, a brother, in the purported
sum of $13,000.00. These papers were dated
October 26, 1948
. The deed of trust named as trustees, Louis Yudelevit and
Rob
ert W. Kidwell. Said note was made and issued without consideration and
in fraud of creditors. At the time of the recording of said deed of
trust, income taxes were due from David and Florence Milloff for the
years 1945, 1946 and 1947.
6. On the 1st
day of September, 1949, at 11:34 A. M., a notice of tax lien was filed
by the United States of America against property of Defendants, David
and Florence Milloff, for unpaid income taxes in the total sum of
$7,665.32.
7. On the same
day,
September 1, 1949
, at
12:36
P. M., David Milloff and his wife
Florence
attempted to convey their interest in said property to the Defendant,
Simon Milloff, by deed.
8. On
September 6, 1949 there was recorded an alleged deed of trust purported
to be dated
August 31, 1948
, to the Defendants, Jacob Gordon and Gerald Lustine, as Trustees. This
deed of trust was executed by David and Florence Milloff on the property
involved herein. It allegedly was to secure a note payable to one Howard
Marnes, in the sum of $1,300.00. Said note and deed of trust were not
signed by Simon Milloff, and the deed was recorded after the conveyance
by David and Florence Milloff to Simon Milloff. There was no
consideration paid for said note.
9. On
May 14, 1956
the Defendant, Abraham Goldkind, obtained a judgment against Simon
Milloff in this Court in Civil Action No. 3828-54 in the amount of
$8,637.00 with interest from
September 9, 1954
at six per cent per annum, and costs.
10. The
United States of America
is entitled to recover of the Defendants, David and Florence Milloff,
the full sum of $12,847.21.
Conclusions
of Law
1. The
Plaintiff,
United States of America
, is entitled to recover from the Defendants, David and Florence
Milloff, the full sum of $12,847.21, with interest from date at six per
cent per annum, plus costs of this suit.
2. One-half of
the real estate described as
Lot
834 in Square 424, and the improvements thereon, are subject to the
Government income tax lien against the said David and Florence Milloff.
3. One-half of
the real estate described as
Lot
834 in Square 424, and the improvements thereon, are subject to the lien
of the judgment in favor of Abraham Goldkind against Simon Milloff.
4. The deed of
trust to Louis Yudelevit and
Rob
ert W. Kidwell, from David Milloff, Florence Milloff, and Simon Milloff,
dated October 26, 1948 and recorded in the Land Records of the District
of Columbia on October 27, 1948, and the notes secured by the same in
the sum of $13,000.00 payable to Harry Milloff, were made without
consideration and in fraud of creditors, and are declared null and void
and of no force and effect.
5. The deed of
trust dated August 31, 1948 and recorded September 6, 1949, executed by
David and Florence Milloff to Jacob Gordon and Gerald Lustine, Trustees,
and purported to secure a note of $1,300.00 payable to Howard Marnes,
was given without consideration and was recorded after David and
Florence Milloff had conveyed their interest in the real estate, and
both the deed of trust and the note are declared null and void and of no
force and effect.
6. The said
Lot 834 in Square 424, and the improvements thereon, in the District of
Columbia, are titled in fee simple in the Defendant, Simon Milloff, but
such interest is subject to sale under the tax lien of the United States
of America, and the judgment lien of Abraham Goldkind; and one-half of
the net proceeds of sale shall be applied to the tax lien of the United
States of America, and the other one-half of the net proceeds shall be
applied to the judgment lien of Abraham Goldkind; and if any sum is left
after the application of the Government's lien to one-half of the
proceeds and the application of Abraham Goldkind's claim, then such
balance shall be paid to Simon Milloff.
