
    Hiram S. Johnson, as Executor and Trustee of and under the Last Will and Testament of Harriet L. Curtis, Late of the Town of Canaan, County of Columbia, N. Y., Deceased, Appellant, v. Rufus H. Woodworth, Respondent, Impleaded with Anna W. Woodworth, His Wife.
    Third Department,
    November 10, 1909.
    Beal property — decedent’s estate — execution of alleged deed — inadequacy of consideration —• prima facie case in plaintiff’s favor.
    When the inadequacy of consideration is very gross, fraud will bo presumed, for though there may be no positive evidence of it, yet, when the inequality is so great as to shock the conscience, the mind cannot resist the inference that the bargain must have been improperly obtained.
    A consideration which may not be inadequate as between parties related to one another may be grossly so as between strangers in the absence of explanation.
    Where in an action to set" aside a deed as having been procured by fraud and imposition, or to declare the same a mortgage, it appears that the alleged grantor, plaintiff’s testatrix, transferred too stranger in blood land worth §2,000 for §500 to the exclusion of her son; that a contemporaneous instrument contained a provision for the reconveyance of the property in case of the death of the grantee, which was inconsistent with the idea of an absolute conveyance; that plaintiff’s testatrix continued to live on the land after the giving of the alleged deed, and that the grantee, who was of some legal ability, had subsequently characterized the transaction as a security, had spoken of the desirability . of procuring money to pay the interest, and had intimated to the daughter in-law of the deceased that the transaction would benefit her husband, it is error to dismiss the complaint at the close of plaintiff’s case.
    Appeal by the plaintiff, Hiram S. Johnson, as executor, etc., from a judgment of the Supreme Court in favor of the defendant Rufus H. Woodworth, entered in the office of the clerk of the county of Columbia on the 15th day of July, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Columbia Trial Term, and also from an order entered in said clerk’s office on the 13th day of July, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      John C. Dardess, for the appellant.
    
      Sanford W. Smith, for the respondent.
   Cochrane, J.:

On January 27, 1904, Mrs. Harriet L. Curtis, the plaintiff’s testatrix, executed to the respondent Rufus H. Woodworth a warranty deed, the consideration therein expressed being $1, of a farm of about 100 acres. On the same day respondent and his wife executed to the deceased a bond and mortgage on the same premises, conditioned for the payment of the sum of $500 in live annual payments of $100 each, without interest, the first payment to be made at the expiration of one year. He also delivered to the deceased a written agreement containing the following language, viz.: In the event of my death previous to January 27, 1909 (January twenty-seven, nineteen hundred and nine), I hereby will and agree that my heirs or executors shall surrender to said Harriet L. Curtis, her heirs or executors, a deed and all right, claim and title to the property now occupied by said Harriet L. Curtis, and transferred to me by deed this 27th day of January, 1904'—-provided that the said Harriet L. Curtis, her heirs or assigns, shall make payment to my heirs or assigns the sum of five hundred dollars ($500) and interest on same from this date to date of payment. And also the sum of $25 to cover expense of transfer, etc.”

Mrs. Curtis died in December, 1906, leaving a last will and testa.ment executed a few days prior to hér death, in which she devised the property in question to the plaintiff in trust for the benefit of her son William B. Curtis during his life and the remainder at his death to his children.

Plaintiff by this action attacks the said deed as having been procured by' fraud and imposition on the part of respondent, and he also in his complaint alleges that the deed was intended as a security for the sum of $500 to be advanced by respondent in accordance with the terms of said bond and mortgage, and that it was executed by the grantor under the belief that the same was intended as such security, and that by the repayment to respondent of such sum of $500, or such part thereof as should be advanced by him, with interest, he would reconvey the premises.

The learned trial justice, on the conclusion of plaintiff’s evidence, granted a nonsuit. The plaintiff contends that there was sufficient in the evidence to malte a prima facie case, and that the nonsuit was error. The determination of this question requires a brief review of the evidence.

Mrs. Curtis was a widow living on the farm in question with her son and his wife. She was about seventy years of age, and although, not menially incapacitated, there is some evidence tending to show that she suffered somewhat from physical infirmities and weakness. She owned another farm which was incumbered for $500. The defendant Woodworth resided only a few rods distant. His relations with the deceased seem to have been such as ordinarily exist between neighbors^ It does not appear that they ever had prior business transactions. There is no evidence of any negotiation leading up to the transaction in question, or that- she consulted any person in inference thereto. The respondent was a justice of the peace, and himself drew all of the papers hereinbefore mentioned. The deed was witnessed by the son of Mrs. Curtis and his wife, although it does not appear that they were cognizant of its contents. There is evidence that the farm was worth $2,000. After the execution of the papers, Mrs. Curtis continued to reside on the farm as before until her death, although the deed made no provision to that effect. The respondent stated after the transaction that he expected to look after and care for her as long as she lived. Within a few months after the execution of the deed, he paid to her and for her benefit upwards of $300, which was indorsed on the bond, although by the terms thereof he was hot yet obligated for the; payment of any amount. Included in such payment was a note held by one Beaver, and it appeared that after paying such note respondent told the son of Mrs. Curtis that he had paid the same and that he needed “ no more security.” On another occasion he told the same person that he would like to do something with the property to get money to pay the taxes and interest, although under the arrangement as claimed by him no interest was due or even payable, whereas if the transaction was merely a security for his advancements, interest was accruing thereon. It also appeared that on the day when the deed was executed he said to the wife of William B. Curtis, “I have things fixed now so you and Will will never want for anything.”

In my opinion the evidence was sufficient to put the respondent to his proof. Property which must be assumed on this appeal to have been worth $2,000 was transferred to a stranger in blood, and to the exclusion of the grantor’s son, with whom she was living, for a consideration of less than $500, when it is considered that the payments were to be distributed over a period of five years. An arrangement so unusual and unnatural cannot be lightly regarded without some explanation on the part of the person claiming the benefit thereof, and not much evidence is necessary to impose on such person the duty of an explanation. In 6 American and English Encyclopaedia of Law [2d ed.], 701, it is said : “ When the inadequacy of consideration is very gross, fraud will be presumed, for though in such a case there may be no positive evidence of it, yet, when the inequality is so great as to shock the conscience, the mind cannot resist the inference that the bargain must in some way have been improperly obtained. * * * As to wdiat degree of inequality constitutes gross inadequacy, no rule can be laid down. Between the parties, it lias been said, to set aside a conveyance, there must be an inequality so strong, gross and manifest that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it.’ ” Substantially the same rule was declared in Dunn v. Chambers (4 Barb. 376) and Moyer v. Bloomingdale (38 App. Div. 227, 234). It is true that mere inadequacy of consideration is insufficient to avoid a sale, but that rule is not an unqualified one and may not in all cases prevail where the inadequacy is very great. In Byers v. Surget (19 How. [U. S.] 303) the court said: “It is insisted that inadequacy of consideratian, singly, cannot amount to proof of fraud. This position, however, is scarcely reconcilable with the qualification annexed to it by the courts, namely, unless such inadequacy be so gross as to shock the conscience; for this qualification implies necessarily the affirmation, that if the inadequacy be of a nature so gross as to'shock the conscience, it will amount to proof of fraud.” The degree or extent of the inadequacy is to be considered with reference to the relations existing between the parties and the apparent reasons which may exist for such inadequacy. A consideration which may not be inadequate as between parties bound by the ties of affection and kinship may be grossly inadequaté as between strangers unless some explanation is vouchsafed. How in this case, as we have seen, there is no apparent reason why this woman should convey property worth $2,000 to her neighbor for less than $500, excluding her son from the benefit thereof.

But the plaintiff’s case does not rest alone on the inadequacy of the consideration, but that feature of the case should be considered in connection with other facts and circumstances of more or less probative force. First. From the instrument providing for a reconveyance of the property in case of the death of respondent it is not clear that the deed was intended as an absolute and indefeasible conveyance. That instrument by its terms was only to be effective in case the grantee died before he completed his payments and it suggests a question whether it was not intended to accomplish some undisclosed object, for the reason that it is difficult to understand how it could serve any useful purpose. Had the respondent died before completing his payments Mrs. Curtis would have been amply protected by the bond and mortgage if the transaction was simply a sale of property for $500 and a mortgage back to secure that amount. Second. The fact that Mrs. Curtis remained on the property after the deed was given with the acquiescence of respondent is some evidence that she had the right to remain there, and this argument is not necessarily overcome by the respondent’s statement subsequent to the transaction in justification thereof that he had obligated himself for her support. Third. The admissions of the defendant whereby he characterized the transaction as a security and spoke of the desirability of procuring money to pay interest and intimated to the daughter-in-law that the arrangement was such as would benefit her husband and herself cannot be ignored. The respondent was possessed of sufficient legal ability to prepare the instruments and conduct the transaction himself and it cannot be assumed that in referring to the transaction as a security he was using the term in the unsophisticated way in which ordinary laymen sometimes carelessly or ignorantly make use of legal terms without fully comprehending their meaning.

The rule is well established that on an appeal from a judgment ot nonsuit the plaintiff is entitled to the most favorable inferences properly deducible from the evidence. The evidence here presented, unexplained and uncontradicted, is sufficient to permit an inference that the transaction under consideration was the result not necessarily of positive and actual fraud on the part of the respondent but of an understanding on the part of Mrs. Curtis that she was giving security for money to be advanced to her by him. Such a conclusion might not be inevitable, "but if permissible it was . error to grant a nonsuit. A question of fact was presented and the learned trial justice, was in error in disposing of the case as if it presented only a question of law.

The judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  