191 N.Y. 452 | NY | 1908
The action was ejectment to recover premises in the city of New York. The plaintiffs claimed as *455 heirs at law of one Michael L. Flynn, concededly at one time seized and possessed of the premises, who died January 14th, 1889. Defendants claimed title through a deed executed by said Flynn, bearing date January 25th, 1887, to John Dollard, and another made by said Dollard on January 27th of the same year to Mary M. Flynn, the wife of said Michael L. Flynn. They also claimed title through a will of said Michael L. Flynn made on March 13th, 1885. The complaint alleged that the plaintiffs were entitled to the immediate possession of the premises, and that the defendants wrongfully withheld the possession thereof. The answers of the several defendants set forth the deeds and will above recited. On the trial the plaintiffs proved the possession and ownership of Michael L. Flynn, his death and that they were his heirs at law. The defendants put in evidence the deeds and will. In rebuttal the plaintiffs sought to prove that at the time of the execution of those instruments Michael L. Flynn was of unsound mind and incompetent. This evidence the court excluded on the ground that as the said Flynn had not been judicially declared incompetent the deed executed by him could be avoided only in equity, and thereupon directed a verdict for the defendants. It was conceded that the validity of the will might be assailed for lack of competency on the part of the testator, but an attack on the will would have been profitless as long as the deed remained unimpeached. The judgment entered on that verdict was affirmed by the Appellate Division by a divided court.
The law is settled in this state that the deeds and contracts of a person of unsound mind, who has not been judicially declared incompetent, are voidable, not absolutely void (Blinn v.Schwarz,
Some text writers, while conceding that this doctrine is true of personalty, contend that a different rule obtains in the case of real estate. Mr. Bigelow, in his work on Frauds (Vol. 1, p. 76), writes: "If, however, the property sought is realty, the case will be different, according to the general view of the common law. The guilty party acquires indeed only a voidable title, as in the case of personalty; but the title of real estate can be conveyed only by deed, and it follows that it can be divested only by deed. Tender and demand would not then restore the legal title to the defrauded vendor. He would have no right to enter; he could not then expel the purchaser, and he could not maintain an action of ejectment, for that requires a legal title." The authorities cited by the learned author in support of his position (Pearsoll v. Chapin, 44 Pa. St. 9; Mitchell v.Moore,
Accepting, however, the distinction made by the learned text writer between the principle applicable in realty and that applicable to personalty, there nevertheless are, unquestionably, certain kinds of fraud for which a deed can be avoided at law. It is said in Story's Equity (sec. 60): "Thus, for example, although fraud, accident and trust are proper objects of Courts of Equity, it is by no means true that they are exclusively cognizable therein. On the contrary, fraud is in many cases cognizable in a Court of Law. Thus, for example, reading a deed falsely to an illiterate person, whether it be so read by the grantee or by a stranger, avoids it as to the other party at law." (CitingThorough-good's Case, 2 Coke, 9.) The same is true as to a deed executed by a blind man. (Shulter's Case, 12 Coke, 90.) There are two kinds of fraud which differ essentially in their character; in the one the grantor is induced to convey his property by fraudulent representations as to the value, nature or character of the consideration he receives for the conveyance. This is sometimes called fraud in the consideration. In the other case the grantor is deceived into the execution of an instrument of the contents of which he is ignorant. This is sometimes called fraud in the execution of the deed. The distinction *458
between the two cases lies just here. It is elementary law that the assent of the parties is necessary to constitute a binding contract. In the first case the assent of the party though obtained by fraud is, neverthless, obtained not only to the execution of the instrument, but to the contract which it evidences. In the second case there is procured only the signature to and execution of the written instrument, but not assent to the contract therein stated. In cases of this latter class the deed can be avoided at law. (Wilcox v. AmericanTelephone Telegraph Co.,
The rule stated seems to generally prevail in this country. In Massachusetts the deed of an incompetent person is voidable, not void (Allis v. Billings, 6 Metc. 415); nevertheless ejectment lies to avoid the deed. The rule obtains in Pennsylvania *460
(Crawford v. Scovell, 94 Pa. St. 48); in Maine (Hovey v.Hobson,
Let us now turn to analogy. Nearly all the text writers and judicial decisions treat lunacy or mental unsoundness and infancy as disability similar in character and in their effect on the contracts of the parties. In Bool v. Mix (17 Wend. 119) Judge BRONSON said: "Deeds procured by duress, or executed by persons of unsound mind, stand on nearly the same footing as the deeds of infants." In Blinn v. Schwarz (supra) Judge VANN quoted from Blackstone, Chancellor Kent and the principal text writers on contracts to the effect that the contracts of lunatics and infants were of the same character, not void and mere nullities, but voidable only. It is clearly settled that an infant on arriving at age may avoid his deed in an action at law. (Jackson v. Carpenter, 11 Johns. 539; Clapp v. Byrnes,
The learned judge who wrote for the majority of the court below relied on a previous opinion rendered by him in the case ofBlinn v. Schwarz (
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
GRAY, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur; HAIGHT, J., not voting.
Judgment reversed, etc.