82 N.Y.S. 208 | N.Y. App. Div. | 1903
The plaintiff is a son of Mary Cane who died in October, 1889. Her first husband, the father of the plaintiff, died many years ago, leaving the plaintiff his only offspring. The mother intermarried
In 1897 the plaintiff came to the G. A. R. encampment at Buffalo and learned of the death of his mother and of the conveyance to her pastor. August 7, 1899, he commenced this action, charging that the deed was made by his mother and accepted by tire
And again : “ He said * * * that he was holding that property for a boy if he ever turned up.. He says: ‘I don’t think he ever .will; we never heard anything from him.’ He said: ‘I will tell it to you and hold the money for the boy,’ and then stated the price. He said he 'would sell it at that price.”
And Mrs. Bund related the following conversation with Father Hines, which she said occurred in 1890 : “ I asked him what the price was, and I believe he said $3,000, something in that neighborhood. I says, ‘ I understand there is a son living, do you know anything about that?’ Yes, he did. I said : ‘ Do you know whether that son is dead or alive ? ’ He wasn’t sure, he didn’t know whether he was dead or alive any more than any of the rest of us. I said : * * * ‘ The son could claim the property if he came, couldn’t he?’ He said‘Yes.’ I said: ‘Under those circumstances I don’t care to buy the property, but will let you know later.’ He didn’t know whether the son was dead or alive, but he was holding this property for the son in case he was alive.”
The witness Harrington testified: “ I asked Father Hines if they had found the boy; he said no. I said, ‘ I don’t think you will find him.’ I says, ‘ Who will the property go to ? ’ He says, ‘ It
Proof was offered on behalf of the defendants tending to destroy the effect of this testimony. The court, however, has determined the question of fact in favor of the plaintiff, and I think the evidence sustains the conclusions reached.
The authorities are a unit in condemning the conveyance or transfer of property from a person to his attorney, guardian or spiritual adviser, and presume a conveyance of that character was the result of an undue advantage exercised by the beneficiary. (Marx v. McGlynn, 88 N. Y. 357, 370, 371; Barnard v. Gantz, 140 id. 249, 257, and cases cited; Ten Eyck v. Whitbeck, 156 id. 341, 353.)
The doctrine which is designated as “ constructive fraud ” is thus enlarged upon in Cowee v. Cornell (75 N. Y. 91, 99) : “We return, then, to the question whether this case was one of constructive fraud. It may be stated as universally true that fraud vitiates all contracts, but as a general thing it is not presumed, but must be proved by the party seeking to relieve himself from an obligation on that ground. Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or on the other from weakness, dependence or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is •shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood. This doctrine is well settled.”
In this case the grantor was .an old woman, uneducated, and naturally leaned and depended upon her pastor. This is evidenced by several circumstances. She went to him when ill, leaving her home •and going to Niagara Falls, where he then resided, was in his home, and he provided a place for her. He caused her to make her will in his favor, so that he acquired all of her property. They did not ■stand on equal terms. He had a dominating influence over her, and the presumption is that he induced the making of this deed.
The complaint does not, in specific terms, charge fraud, and the
The argument is made that as there is no distinct finding or charge of fraud the judgment must be reversed ; that this is an attempt to create a trust by parol, and is consequently within the condemnation of the Statute of Frauds (2 R. S. 134, § 6, revised by Laws of 1896, chap. 547, § 207) and reliance is had upon Sturtevant v. Sturtervant (20 N. Y. 39); Wheeler v. Reynolds (66 id. 227), and kindred cases which do hold the abstract principle that a parol trust cannot be created. Those cases, however, are not decisive of the one before us which depends upon another principle well grounded in the doctrine of equity. Starting with the confidential relation existing between these parties and the presumption following therefrom, the grantee became a trustee ex maleficio, and a court of equity will engraft on the transaction a trust of that character. In Wood v. Rabe (96 N. Y. 414) the mother in conjunction with her attorney and his former guardian had induced her son to confess judgment to her for $2,000 whereby she obtained real estate belonging to him of the value of $10,000 upon her oral agreement to reconvey to him, but she refused to do this. The Court of Appeals disregarded the Statute of Frauds and held that the son could maintain an action to enforce the oral agreement. The court say (at p. 425): “ There are two principles upon which a court of equity acts in exercising its remedial jurisdiction, which taken together in our opinion entitle the plaintiff to maintain this action. One is that it will not permit the Statute of Frauds to be used as an instrument of fraud, and the other, that when a person through the influence of a confidential relation acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief.”
In Goldsmith v. Goldsmith (145 N. Y. 313) the plaintiff, who was incapacitated by physical injuries to attend to her property, conveyed it to her son by absolute deed upon his oral promise to hold it for the benefit of his brothers and sisters, which agreement he afterward repudiated. An action was commenced to compel him to convey to these brothers and sisters in accordance with his promise. The Court of Appeals again recognized the principle
The same doctrine is recognized in Amherst College v. Ritch (151 N. Y. 282, 323); Ahrens v. Jones (169 id. 555), and Winne v. Winne (166 id. 263).
We are convinced that this case comes within the doctrine of these cases. If the story of the plaintiff’s witnesses is to be credited there was no consideration for the conveyance, and the reason for the deed was the reliance the grantor placed upon the promise of her pastor to keep this property for her son if he should ever appear. The declarations of the intestate made while he held the title and when bis attention was directed to the character of that title are competent as declarations against himself. (Leary v. Corvin, 63 App. Div. 151.)
The savings bank to which the mortgage of $500 was given by Father Hines in 1887 is not a party to this action, and the validity of the mortgage is not attacked and probably could not be successfully, for the grantor then had the record title.
The judgment is affirmed, with costs to the respondent.
All concurred.
Judgment affirmed, with costs.