5 N.Y.S. 275 | N.Y. Sup. Ct. | 1889
One of the issues presented by the answer was whether Joshua Adams, on the 10th February, 1869, was of unsound mind. The referee found he was, and this finding is claimed to be unsupported by the evidence. Mr. Adams was an old man, had been sick for some time, and died soon after the date of the deed. There is evidence tending to show that in and from the fall previous his mind was impaired; that he was unconscious much of the time; was not able to help himself or appreciate his personal wants; was not able to engage in business transactions; could not talk understandingly. The testimony of those who had the care of him to a considerable extent was produced, and the surrounding circumstances shown.
In this view of the case, it does not become important to determine whether, ■as claimed by plaintiff upon the evidence, it is to be presumed from the genuineness of the signature of the justice that the deed was acknowledged by the' grantor and delivered. Assume that was the case. It does not dispose of the issue as to unsoundness. So it may be, as claimed by plaintiffs, that the possession of Asa IC. Adams was not of such a character as to necessarily be inconsistent with the claim of Joseph P. Adams to an undivided one-half, and that therefore the mortgagee was not called on to inquire. This it is not nee'essary to determine, as the equities here do not depend on the dealings between the mortgagor and mortgagee, but on the dealings between the mortgagor and Joshua Adams, and from those dealings no equity appears sufficient to sustain the deed.
It is further claimed by the appellants that the referee erred in not finding, -as requested, that Asa K. recognized the conveyance in question. Assuming this was important, (Enders v. Sternbergh, 2 Abb. Dec. 53,) it was clearly a disputed question, depending upon the inferences to be drawn from the evidence, including some significant circumstances. The evidence is abundant to sustain the refusal of the referee.
There are no other exceptions as to findings or requests to find that are important to be considered.
Divers exceptions as to rulings on evidence were taken, but our attention is only called to the following: Upon the rebuttal the defendant’s counsel asked a witness, in reference to an occasion in 1880 when Joseph P. Adams
Hardin, P. J., concurred. Martin, J., did not vote.