1 N.Y.S. 714 | N.Y. Sup. Ct. | 1888
The referee has found that the deed from the plaintiff to the defendant Wild was without consideration. The evidence supports this finding, although there is some proof in support of the admission, contained in the deed, that a consideration was paid by the grantee, and accepted by the grantor. Our own examination of the case leads us to concur with the referee on this question. The conveyance being without any consideration, the next inquiry which naturally presents itself is, what was the object and purpose-of the grantor in conveying all of her property to her brother, for she had none other than the real estate mentioned? The referee has found that the conveyance was the result of an arrangement, entered into between the plaintiff and her brother, by which she was to convey the house and lot to him for the-purpose of keeping the same away from the control and management of her husband, and to preserve the property for her own use. There is nothing in the history of the transaction which indicates that the plaintiff intended to-make a gift of the property to her brother, as that would place her in a condition of absolute want and destitution. Every fact and circumstance discussed on the trial is in confirmation of the referee’s finding that the grantee-assumed and promised and agreed to hold and manage the property for the use and benefit of the plaintiff. The trustee disregarded his promise and his duty, and, immediately on receiving the deed, assumed to be the absolute owner of the house and lot, and incumbered the premises by a mortgage to the plaintiff’s husband, and afterwards conveyed the same to him in fee, without any consideration for either conveyance. The judgment restores to-the plaintiff the title to the property, free from the mortgage executed to her husband, and ajl the parties stand in the same legal relation to the property as they did before the conveyance. The referee has not found that the defendant Wild was guilty of any fraud or fraudulent misrepresentation in his negotiations with the plaintiff for the conveyance of the property; or that the parties acted under any mutual mistake, as to any fact or circumstance relative-to the subject-matter under consideration.
The appellant contends that, in the absence of intentional fraud on the part of Wild, the plaintiff failed to make a case for relief either at Jaw or in equity, and the judgment should be reversed. As the grantee made no promise in writing to take and hold the property for the use of the plaintiff, and as. he was not guilty of any act or misstatement which, in the opinion of the referee, amounts to a positive fraud, the judgment must stand, if it is sustained upon some other view of the case which amounts to a constructive fraud on. the part of the grantee, according to well-settled equitable principles, and for that reason the plaintiff was entitled to the relief granted. It was not necessary for the plaintiff to show affirmatively, in order to procure relief, that the-defendant acted with a fraudulent intent in procuring the deed. A court of
The j udgment should be sustained unless some other ground can be stated •which is sufficient for denying the plaintiff relief. The appellant insists that •.the conveyance was made for the purpose of cheating and defrauding him out •of his rights and interest in the property, as the husband of the plaintiff, and for that reason the plaintiff should be denied any remedy, for the purpose of regaining the title to the property. The general rule that courts will extend no remedy to a grantor or vendor of property, to recover back from the grantee or assignee the property transferred to cheat and defraud third persons, al
On the trial the plaintiff called and examined as a witness in her own behalf the officer who prepared the deed and took her acknowledgment, and who-gave evidence on his direct examination tending to prove that the grantee, at the time of the delivery of the deed, paid to the plaintiff the money consideration expressed in the deed. He testified, in substance, that when the deed was ready for delivery he mentioned to Mr. Wild that the plaintiff was entitled to her pay, and that he then put his hand in his pocket, and took out a, package of "brown paper, and handed it to the plaintiff, and said, “There is your money; count it, and see if it is all right;” that the plaintiff accepted the package, and unrolled the same, and counted its contents, and he was sure-there were some bank-bills in the package; that Wild then asked the plaintiff' if it was all right, and she made the reply that it was, and that they then left-the office together. This witness was not cross-examined by the appellant. The plaintiff was then examined as a witness in her own behalf on the same-subject; that is, relative to the payment of the money by Wild to her on that occasion, and the appellant claims that her evidence was received in violation of the provisions of section 829 of the Code, as Wild was then insane. If the-question had been presented to the attention of the trial court by a proper and timely objection, it would merit a careful consideration. It was conceded that at the time of the trial Wild, the grantee, was insane. Case, the appellant, claims under him. The fact of Wild’s insanity was not disclosed to-the court until after some of the rulings were made which the appellant now claims to be erroneous. While the plaintiff was being examined as a witness, her counsel called her attention to the evidence which Puller bad given as to the payment of the purchase money mentioned in the deed, and she stated that she heard the evidence as given by him. She was then asked this question; “How much money was there in that transaction? What was it that you counted there?” To this question the appellant made a general objection, and the judge made no ruling, but remarked; “I think she may state what money she counted, if any,—what she did and what money she counted. ” The counsel for the appellant then interposed the objection that the evidence related to a transaction with an insane person, and was incompetent, under section 829 of the Code. The objection was overruled, and an exception taken.
All concur.