Appeal from an order of tbe Special Term, appointing a receiver.

The defendant is right in his statement made in his affidavit, “ that this is not an action of ejectment.” Hence the authorities to the effect that a receiver will not be appointed before judgment in a pure action at law in ejectment, Burdell v. Burdell (54 How. Pr., 91), Guernsey v. Powers (9 Hun, 78), Thompson v. Sherrard (35 Barb., 593), are not in point. Nor has the decision in Bockes v. Lansing (74 N. Y., 437) application here. In that case the court held that the action, being an action to remove a cloud upon the title, could not be maintained because the deeds sought to be set aside “ did not on their face transfer any title as against the plaintiff.” (p. 111.) It is otherwise in the case in hand.

Nor is the decision in Van Deusen v. Sweet (51 N. Y., 378) an authority against the plaintiff’s right of action and claim for a receiver. It was there decided that an action of ejectment might be maintained in a case like the present; but no intimation was there given that full and ample relief in equity against a deed fraudulently obtained might not also be maintained. It is true, the learned chief commissioner there says, that in case of an dbsolntely void deed, one that never had legal existence or vitality, there would be nothing to set aside by the interposition of a court of equity, or by recourse to an equitable action. But it was not intended to assert the doctrine that an action to set aside a voidable deed, one obtained by fraud and improper practice, or by undue influence, from a person of weak intellect ■ or of unsound mind, could not be maintained in equity. If this was intended, it would be a mistaken assertion, in conflict with well-settled principles of equity jurisprudence.

The action in this case is based on purely equitable considerations. It is brought to set aside conveyances voidable at the election of the proper party to assert their invalidity, because fraudulently obtained without consideration from a person of unsound mind. Such is the theory of the action; and a case for the relief demanded is made on the averments of the complaint. Whether they will be sustained on the trial is a different question. The question before *199us rests upon the papers submitted on the motion for a receiver. •'On these papers it appears that the defendant obtained from the plaintiff, who sues by her committee, a large amount of property, principally real estate, valued at about $20,000, without considera■tion; that the grantor, as is found by inquisition obtained in due form, was at the time of unsound mind, incapable of managing her affairs, to the defendant’s knowledge, and that, independent of -the property so obtained, the defendant is wholly insolvent. These •alleged facts stand on this motion substantially undenied, and with other undisputed formal averments in the complaint, make a proper «case for the appointment of a receiver. It is true the defendant ■denies in general terms that he obtained the conveyances by duress, undue influence, or by means of trick, artifice or fraudulent pracfice; and he asserts that the were voluntarily executed and delivered by the grantor, in the exercise of an unfettered will and an unclouded reason. But there is no denial of the alleged facts that the deeds were without consideration, or that the grantor was, according to the inquisition, a person of unsound mind and incapable «of managing her affairs with judgment and propriety. The inquisition was presumptive evidence of her incapacity. (Van Deusen v. Sweet, 51 N. Y., 386, and cases there cited.) It is also established that the defendant is insolvent, independent of the property charged to have been fraudulently obtained by him, and that the -annual avails and profits derivable therefrom is from $600 to $800, «exclusive of taxes and assessments. It also appears that he has been in receipt of such rents and profits for several years, and has thus been fully recompensed for all repairs and improvements made by •him. As the case was made at Special Term on the motion for a receiver, the order was properly granted.

The order appealed from should be affirmed, with $10 costs, and. •expenses for disbursements.

dissenting :

The appointment of a receiver is, in a certain sense, discretion.ary. But discretion is not without rules. And I must state briefly •why I think those rules have not been observed.

*200An action of ejectment would lie in this case. (Van Deusen v. Sweet, 51 N. Y., 378.) This present action seeks the same relief as would be obtained in an action of ejectment — that is, the recovery of the land from one who claims to own it in fee. In an action of ejectment a receiver would not be appointed. (Guernsey v. Powers, 16 Sup. Co. N. Y., 78.) By analogy, none should be appointed in this action.

The ordinary rule is that a receiver will not be appointed where' a defendant is in possession under a legal estate. (Edw. on Rec., 24 and cases cited.) This rule is only departed from in cases of fraud, clearly proved and of imminent danger, and strong ground of title-in the plaintiff.

In the present ease the facts in the complaint tending to show fraud, are on information and belief. The only additional facts proved by affidavits on the part of the plaintiff, material to the question of fraud, are to the effect that the defendant paid nothing- and that he said that Sarah Mitchell was a crazy old fool. This, the defendant denies on oath. lie also denies all fraud. And the-only fact which can be said to be proved is, that there was no money consideration. The defendant in his affidavit avers that the-consideration was that he should support Sarah Mitchell during heinatural life. There is also the fact that the jury de lunático found that Sarah Mitchell had been a lunatic for nine years previous. This finding was in 1878. The deeds had been executed in 1870' and 1871. It is true that this is admissible evidence. But any one-who has had any experience knows -how easy it is for those who-conduct such proceedings to procure a verdict which will “ overreach ” any conveyance which the parties conducting the proceedings may desire to attack. Of course, the defendant was no party to the proceedings. It appears, too, by the papers, that there had formerly been some disagreement between Sarah Mitchell, the alleged lunatic, and the parties who now control these proceedings the merits of which cannot be understood till the trial.

We have then, only these facts, that the defendant, in consideration of an agreement to support Sarah Mitchell, received the deeds-in question, and that she was eight years after declared to be, and to have been, a lunatic. Now, the appointment of a receiver takes-*201away the property from the defendant, who claims to own it in fee, and withholds it from him during the litigation. It decides upon the merits that he is not the owner. And so long as the plaintiff chooses to protract the litigation, the defendant, without a trial, is kept out of property to which he has a legal title. If it is right to appoint a receiver in this case, I see no reason why one should not be appointed in every action of ejectment, where the plaintiff can show that the defendant is poor and irresponsible. I think that courts should be very cautious how they take away from a defendant, without a trial, the possession of land to which he confessedly has a legal title.

I think, therefore, that the order should be reversed.

Order affirmed, with $10 costs, and disbursements.