
    Ludlow W. Valentine, by Guardian, Resp’t, v. Herman T. Richardt, Impl’d, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    
      1. Deed—Fraud—Money judgment.
    In an action to set aside a conveyance alleged to have been procured by this defendant from plain tiff's mother by fraud, undue influence and domination, such fraud and undue influence were proved, but it also appeared that the other defendants were bona fide purchasers and mortgagees. Held,, that the equitable cause of action failed as to the bona fide purchaser, but the court had power to retain jurisdiction so as to give relief by a money judgment against this defendant.
    3. Same—Proof of fraud.
    Proof that defendant was the physician of the grantor, and maintained illicit relations with her; that he had procured a former deed, which he returned when she commenced an action to set it aside; that she was of weak mind, and under unfounded apprehensions created by defendant; and that he had obtained moneys from her for which she drew a receipt at his dictation, is sufficient to sustain a finding of fraud and undue influence in the procurement of the deed in question.
    Appeal by defendant Eichardt from so much of the judgment herein as awards a money judgment for $20,063.97 against him.
    
      W. C. Beecher, for app’lt; Horace Secor., Jr., for resp’t.
   Barnard, P. J.

This action was brought to set aside a certain deed of conveyance which was alleged to have been procured from Catharine A. Valentine by fraud, undue influence, domination and without consideration. Upon the trial it was proven that the property had passed into the hands of a bona fide purchaser, and was mortgaged to a bona fide mortgagee, and as to the parties the complaint was dismissed.

The jury found that the deed was obtained by the defendant Eichardt by undue influence, and that he paid her no consideration therefor. Upon these findings the court gave a money judgment against Eichardt for the value of the land. Eichardt appeals, and thus there is presented the question whether the money judgment was proper, and whether there is sufficient evidence to sustain the verdict of the jury as to undue influence. The plaintiff is the infant heir of the grantor. If there had been no subsequent purchaser in good faith, the heir would have been entitled to the land by the destruction of the deed procured by Eichardt by undue influence. The deed gave no title to Eichardt as against the grantor or her heir. The recording laws protect a purchaser from one clothed with the usual evidence of title who takes the title in good faith and for a valuable consideration. This rule applies as well to title to personal property. One who invests another with an authority to dispose of it must yield to the rights of a bona fide vendee even if the power or evidence of title was procured by fraud. Weaver v. Barden, 49 N. Y., 286.

As between the parties the deed was void, and the death of the grantor did not give it any greater force then if she had lived to bring the action herself. Where the equitable cause of action failed as to the bona fide purchaser, it was still within the power of a court" of equity to retain jurisdiction so as to give relief by a ?ersonal judgment. Van Rensselaer v. Van Rensselaer, 113 N. Y., 207; 22 N. Y. State Rep., 947.

The money judgment was not given in affirmance of the deed. It was given for the land, which as between the plaintiff and Eichardt belonged to plaintiff. The objection therefore to the money judgment cannot be sustained. There was sufficient proof of undue influence. The defendant Richardt was a physician. He had obtained a deed of the same property before, which the deceased lately had brought an action to set aside. Richardt met this action by deeding the property back. He obtained another deed, and within a short time after sold the same to a bona fide purchaser. The condition of the grantor is made the subject of much evidence Her relation with Richardt is also made the subject of proof. The grantor was of weak mind, and was under unfounded apprehension. There is reason to believe from the evidence that these apprehensions were created by her physician. He is proven to have obtained $10,000 besides the house in bonds. He is proven to have obtained a receipt for moneys in respect to these transactions, which were false and were manifestly dictated by Richardt and written and signed at his dictation by Mrs. Valentine. The expression of that receipt manifestly shows this. The jury could find nothing in the case to uphold such transactions as these between physician and patient. Mrs. Valentine died insolvent, and was made so by the defendant Richardt. The record of proceedings for a recovery in an action in which Richardt was not a party was admissible. An affidavit of Richardt was annexed to the papers, and in this affidavit Richardt was called upon to deny the receipt of the $10,000 or to explain it. He did not deny it, but only denied its fraudulent receipt. Other evidence of the fraud and undue influence by which it was obtained was given on the trial.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.  