103 N.Y.S. 273 | N.Y. App. Div. | 1907
This action is to recover moneys alleged to have been paid under a mistake of fact. Plaintiffs had judgment and the defendant appeals.
One William Barnes died July 2, 1885, leaving a last will and testament purporting to bequeath and devise all of his property to his wife. A child was born after the making of the will, which fact is shown by the record of the proceedings admitting the will' to probate. The. widow, apparently assuming that the devise to her was not affected by the subsequent birth of the child, assumed to convey certain real property owned by the testator. In 1901, Stephen Burkhard, assuming to have title to the premises so conveyed through attempted mesne conveyances, executed a mortgage thereon to the defendant to secure the payment of his bond for the sum of $5,000, and thereafter by warranty deed assumed to convey the property to the plaintiffs, who paid the mortgage on July 2, 1902, and now claim that said payment was made under a mistake of fact. The plaintiff ■ Conrad Belloff testified to the mistaken belief on his part that Burldiard’s deed conveyed title in fee to the premises and that the mortgage was a valid lien thereon, and this is the mistake found by the court and relied on to support the judgment. ■ The widow of William Barnes is still alive. It is conceded that the defendant acted in entire good faith.
The legal -effect of the deed to the plaintiffs was not a question of fact, and there is neither testimony nor. finding that the plaintiffs were ignorant of or mistaken respecting any of the facts involved in the determination of the question of law. The deeds were not wholly invalid, as they operated to assign the widow’s dower interest. (Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324.) The action for dower was not barred (Code Civ. Proc. § 1596) when the
The judgment must be reversed.
Jenks, Hooker and Gaynor, JJ., concurred; Rich, J., dissented.
Judgment reversed and new trial granted, costs to abide the event, .