Soverhill v. Post

22 How. Pr. 386 | N.Y. Sup. Ct. | 1861

By the court, Gould, Justice.

The issues in this case— (it being an equity case, to set aside a deed as "obtained, 1st, from a person not competent to make a deed; and 2d, by undue influence)—were ordered to be tried by a jury, for the purpose of instructing the conscience of the court as to the making of such a decree as should be agreeable to equity. In such an inquiry, on such issues, there is usually allowed great latitude in adducing all the evidence which can, in any reasonable degree of proximity, bear upon the questions. And the circumstances of the family; those of its different members, likely to be affected either way by the conveyance ; the kind and degree of influence of any one of them over the grantor, as manifested during a considerable period of the family existence; and the respective feelings of different members of the family towards each other, and those of the grantor towards different ones of the household, (especially in regard to their pecuniary affairs,) and his views and intentions as to what they should, receive from him, become perfectly legitimate matters of investigation. The weight of each particular fact—how far it should determine the verdict of the jury, and the decision of the court—is an entirely different matter, and one to be left to the court and the jury respectively.

In examining (from the point of view above indicated) the voluminous testimony in the case, and the very numerous exceptions to the admission and exclusion of evidence, carefully and in detail, there seems to be in the rulings of the judge at the circuit, no error that should require a new trial. The most questionable rulings,” as suggested at the argument, seemed to be the one admitting the conversation with Mrs. Morrison as to her agency in the execution of the deed, and her husband’s condition at that time, and that excluding testimony as to Mr. Morrison’s condition in 1854. Of the latter it is to be remarked, that it was merely enforcing against the defendant the very limit as to time which had been previously adopted, on his own request, in excluding testimony offered by the plaintiff. And the former was a conversation in the presence of Coonrade Morrison, “ the fall after the assignment,” (which must, in the case, mean about or less than a year after the execution of the deed,) and so admissible to show his condition at that time, by the fact that such a conversation, on such a subject, was not enough to draw forth any token of his understanding it or even hearing it.

It would seem that the question of the competency of Coonrade Morrison to execute this deed has been sufficiently tried; and there is so much evidence to justify the finding of the jury and the decree of the court, that it would hardly be the exercise of a, sound legal discretion to award a new trial.

On the preliminary question—that there is no appeal from the judgment, and that so the appeal from the order denying a new trial is nugatory, as the judgment remains a final judgment beyond the reach of an appeal—there would seem to be no escape from the position of the plaintiff. The reservation in the special term order denying a new trial, when applied for on the ground of misconduct on the part of judge, jurors and party, is but reserving to the party the privilege of being heard at special term upon a motion for a new trial on a case, without prejudice on account of having moved on affidavits, and is but equivalent to an order that the party have leave to make a case and attach it to the roll, and then move for a new trial. Further, unless the order showed (what it does not) that the motion was denied on condition that the judgment, then already regularly entered, should stand but as security, shorn of its attributes as a final judgment, it may well be doubted whether the special term had the power to alter or modify the plaintiff’s rights in and by his judgment, or to vary the law as to an appeal therefrom.