63 N.J. Eq. 602 | New York Court of Chancery | 1902
The bill in this case was filed to set aside, as constructively fraudulent, two conveyances, the first made by Thomas Collins [o his son John Collins, on December 9th, 1898, of a house and lot in Hamilton street, and the second, by the same grantor to the same grantee, on August 13th, 1901, of a house and three lots in Division street.
The grantor is seventy-nine or eighty years old. He is an Irishman by birth, and he came to this country in the year 1865 or 1866. He worked at first as a day laborer and afterwards made
Thomas Collins, Sr., was, apparently, of a quarrelsome disposition. Several years ago he ejected John from a part of the property, and in July, 1901, he ejected Thomas. He is old and infirm. His head troubles him. His speech is so thick that it was with difficulty that he could be understood on the witness-stand.
The deed to John for the Hamilton street property was a pure gift. It is expressed to be for the sum of $1. It was understood at the time that Thomas was to have the rents of the property for his life, and he has, in fact, been permitted to take them. But no reservation to this effect was made in the deed. This is fatal to it. Mulock v. Mulock, 4 Stew. Eq. 594; Martling v. Martling, 2 Dick. Ch. Rep. 122; White v. White, 15 Dick. Ch. Rep. 104.
As to the conveyance of the Division street lots, it is doubtful, on the testimony, whether it was intended as a gift or whether it was made for a consideration confessedly inadequate. Both John and his father, who, of course, are on opposite sides in. this case, testify to facts showing that it was, if anything, a gift. John swears repeatedly and in the most explicit manner that it was a gift, and not a purchase, while Mr. Cowenhoven, the solicitor who prepared the deed, swears that it was made for the consideration expressed in it, viz., $500. Yiewed in either light, it seems to me that it cannot stand. It was substantially a conveyance of everything that Thomas Collins had. Although the deed is, in terms, “subject to the life estate of the said Thomas Collins,” it practically leaves him almost destitute. It is testified to by Thomas Collins, Sr., that the house would not rent for more than $8 or $10 a month. As the taxes amount
John, the grantee, testifies “all he wanted was to take the place away from his son [Thomas] and his wife, and if I didn’t take it, he was going to deed it over to his nephew.” He further sajrs, “I told him (my father) he was not doing right by my brother when he done so.” The grantor does not appear to have been advised of the improvidence of his act. Mr. Cowenhoven did, no doubt, as he testifies, explain the contents of the paper, but he did not tell the grantor that he was doing an improvident thing, and he did not explain the possible consequence of that improvidence. He put no power of revocation in the deed.-
If the transaction is to be regarded as one founded on a money consideration, that consideration was very inadequate, and, such as it was, one-half of it was to go, not to the grantor, but to Mr. Cowenhoven, in payment for legal services. This was, according to Mr. Cowenhoven’s testimony, part of the bargain. He says:
“I then spoke as to the consideration to be named in the deed; there was about $240, I think, then due me. * * * Then I said there is some back money—I will find out precisely what that sum of money is in a few days-—-that John was to pay me and that the balance was to be paid as John and his father had agreed.”
The legal situation was that John got the property for a trifling sum (the life estate being necessarily of very short duration), and Mr. Cowenhoven got a benefit from the transaction in having his bill paid; the father has not even received the inconsiderable residue that was, according to Mr. Cowenhoven, to come to him. In this aspect of the matter we have, therefore, both an inadequate consideration and the following elements of inequality—first, a deed prepared'by a gentleman
As, however, the money actually advanced by John was nearly all of it advanced because of his getting this conveyance, and as he who asks equity should do equity, the deed should, I think, stand security for the money paid. Under the circumstances of the case neither party should have costs against the other.