
    J. Edward Swanstrom as Committee of Edward P. Day, an incompetent person, Plaintiff, v. Frederick C. Day and The Title Guarantee & Trust Co., Defendants.
    (Supreme Court, Kings Special Term for Trials,
    February, 1905.)
    Deed — Aged father to son — Setting aside—Fraud and undue influence— Burden of proof — Mortgagee without notice — Possession as notice — Finding on inquisition of lunacy not retroactive — Code Civ. Proc., § 2335.
    Where a conveyance of real estate for a nominal consideration, made by an aged father, feeble in body and mind,-to a son who, at the time of the execution of the deed and for some weeks prior thereto, had been living with, taking personal care of and in sole charge of his father, is sought to be set aside at the suit of a committee of the estate of the grantor subsequently appointed upon the ground of fraud and undue influence, the grantee has the " burden of proving that he did not take advantage of his father’s weakness but that the conveyance was his free act.
    A mortgage, given by the son after the appointment of said committee, may not be set aside where it appears that the mortgagee had no notice or knowledge of the son’s undue influence in obtaining the conveyance to him.
    Where it appeared that a part of the land conveyed 'was the dwelling house of the father, in which he and the son lived at the time of the execution of both the deed and the mortgage, the occupancy of the father was not inconsistent with the son being the one in possession; the inference being permissible that possession followed title.
    A finding of the father’s incompetency under an inquisition instituted under section 2335 of the Code of Civil Procedure, relating to the subject of inquiry in cases of lunacy, and the final order of confirmation, made and filed more than a year after the conveyance to the son, have no retroactive effect and are not presumptive evidence that the father was incompetent when he conveyed the property or that the son used undue influence, and were not notice thereof.
    Suit by the committee of the estate of an incompetent to set aside a conveyance without consideration of real estate by such incompetent to his son, the defendant Frederick 0. Day, before the institution of the incompetency proceedings, on the ground that it was obtained by fraud and undue influence; and also to set aside a mortgage given by the said grantee to the other defendant since such proceedings and the appointment of the committee therein.
    Conrad S. Keyes for plaintiff.
    Mirabeau L. Towns for defendants.
   Gaynor, J.:

The ward of the committee, an old man of eighty-two, while sick and feeble of body, confined to his house and bed, and enfeebled of mind, made the conveyance in question of a plot of real estate of the value of about $40,000 to his defendant son for a nominal consideration. He had other children.

The son was at the time, and had been for some weeks, living with, taking personal care of and in sole charge of him. This put upon the son the burden of proof that he did not take advantage of the weakness of his father, but that the conveyance was his free act (Ferris v. Ferris, 22 Misc. Rep. 577).

Hot only has that burden not been met, but without regard to it I find that the evidence shows affirmatively that the conveyance was obtained by undue influence of the son over the father.

In arriving at this conclusion I rate the testimony of the son and of the notary Roberts as unworthy of any credence whatever; and the testimony of the father is so contradicted by his former* letters and affidavits that it is worthless. He is much improved physically and mentally, but in such a highly wrought condition of mind against his committee that the son got him to repudiate all of his past statements of fraud and undue influence by his son against him in respect of the conveyance, which were made when he had no reason not to be truthful and sincere, and to testify to the exact contrary.

But the mortgage given by the son cannot be set aside, for the mortgagee had no notice or knowledge of the son’s undue influence in getting the conveyance to him. One who gets title to real or personal property hy fraud or undue influence, is able to convey good title to a purchaser for value and without notice. He has title until it is avoided by the grantor (Simpson v. Del Hoyo, 94 N. Y. 189; Valentine v. Lunt, 115 N. Y. 496). Such a case is different to one where there is no title, as in the case of chattels obtained of one who stole, them, or of real estate of one whose title deed is a forgery, or was never delivered. The decision in Harden v. Dorthy (160 N. Y. 39) is based on the finding of fact of the trial court that the conveyance had never been executed or delivered — a mere statement of which sufficeth. It is hard if not impossible to extract this from the reporter’s head note, not to look further, hut that is really all there was of the case. Much useless and turgid matter has to he plodded through in many of the decisions of to-day in order to get the point, or the one kernel of wheat.

A part of the plot conveyed was the dwelling house of the father. He lived there when the conveyance was made, and when the mortgage was made, and the son was residing there with him. But the son was in ostensible possession and control, and was collecting the rents of the tenants on the plot, all by the act-, however weak, of the father. So far as facts and outward appearances went, the father was, at best, no more in possession than the son. His occupancy was equivocal, i. e., it might be under his son or over him. It was not inconsistent with the son being the one in possession, and in such a case the inference is permissible that possession is in the one having title (Brown v. Volkening, 64 N. Y. 76; Pope v. Allen, 90 id. 298; Holland v. Brown, 140 id. 344). The case of Phelan v. Brady (119 N. Y. 587) is obviously different; there was nothing equivocal or doubtful about the possession there; in fact there was no question of which of two occupants was in possession; and the case of Mygatt v. Coe (147 N. Y. 456) has no application at all.

The conveyance to the son was made March 27th, 1903. The final order confirming the finding of the inquisition that the father was incompetent to manage himself or his property and appointing the committee was made and filed July 14th, 1904. The mortgage in question was made and delivered August 17th, 1904. The finding and order on the inquisition had no retroactive effect and were not presumptive evidence that the father was incompetent when he conveyed to his son, much less that the son used undue influence, and were not notice- thereof (Code Civ. Pro. § 2335; Dominick v. Dominick, 20 Abb. N. C. 286).

Judgment accordingly without costs except to the plaintiff.  