
    Jennie F. Dunn, Respondent, v. Augusta E. M. Dunn and Others, Impleaded with Edward E. Dunn, Appellant.
    Third Department,
    June 27, 1912.
    Real property—deeds — acknowledgment or attestation—priority — purchaser in good faith — purchaser for valuable consideration— fraud in procuring execution of partition deed—burden of proof— cancellation of deed — mutual mistake,
    A deed acknowledged or attested by a witness takes priority over a subsequent deed executed by the same grantors, although the later deed is first recorded if the grantee, therein had actual knowledge of the first deed and is not a purchaser in good faith.
    A consideration of one dollar expressed in a deed and actually paid is insufficient to make the grantee a purchaser for a valuable consideration. A deed which has not been acknowledged or attested does not take effect as against a subsequent purchaser, although the latter has actual notice thereof and is not a purchaser in good faith and for value.
    Where a son entitled to only one-fourth of a tract of land misrepresents the value and amount thereof to his mother and influences her to execute a deed to him for one-half of the premises in order to effect a partition, the conveyance should be set aside although the son did not intend to deceive his mother.
    Under such circumstances the burden of proof is upon the son to show . that the transaction was fair and honest and that no advantage was taken by him.
    Courts of equity may give relief in cases of mutual mistake unaccompanied by fraud where the subject of the conveyance is so materially variant from what the parties supposed -it to be that the substantial object of the conveyance has failed.
    Kellogg, J., dissented in part.
    Appeal by the defendant, Edward E. Dunn, from a final judgment of the. Supreme Court in favor of the plaintiff, entered in the.office of the clerk of the county of Delaware on the 14th day of November, 1911, confirming the report of a referee in a partition action, with notice of an intention to bring up for review an interlocutory, judgment granted on the 5th day of July, 1911, and entered in said clerk’s office. Judgment affirmed, with costs, on the opinion of the referee.
    
      
      E. D. Cumming, for the appellant.
    
      C. L. Andrus, for the respondent.
    
      All concurred, except Kellogg, J., who favored a reversal as to the plaintiff; Lyon, J., not sitting.
   The following is the opinion of the referee:

Eugene Clinton, Referee:

Hiram Wooster died intestate in the year 1857, seized and possessed of the land described in the complaint. The tract originally contained 770 acres of land. It extended back from the Delaware river south about two miles and was mostly wild timber land. A small portion along the river was cleared and used for farming purposes, on which was located an old house and a small barn. The original tract was fifty chains in width on the south or back end. Shortly before his death Hiram Wooster conveyed to John Humphrey a strip off the west side of the tract, which was fifteen chains wide on the back and contained about 170 acres. Therefore the tract or parcel of which Hiram Wooster died seized contained about 600 acres, and was thirty-five chains in width on the south or hack line.

Hiram Wooster left neither father nor widow nor descendants, but left Olive Wooster his mother, and three sisters, Augusta E. M. Dunn, Olive E. Wooster and Clarissa Harper, and two brothers, Lyman Wooster and Enos B, Wooster. Enos B. Wooster died intestate and without issue in 1879. The mother, Olive Wooster, died September 14, 1875. Lyman Wooster died in 1863, leaving a widow who is now deceased, and six children, viz.: Lyman M. Wooster, Mary E. Wooster, Maria Parmalee, Olara Hall, Olive Hard and Edith V. Crandall, his only heirs at law and next- of kin.

Clarissa A. Harper conveyed her undivided one-fourth share or interest to Augusta E. M. Dunn by deed bearing date July 10, 1891, which was recorded in Delaware county clerk’s office January 29, 1908, in liber 157 of deeds at page 4. Olive E. Wooster conveyed her undivided one-fourth share or interest to Augusta E. M. Dunn by deed bearing date April 23, 1896, which was recorded in Delaware county clerk’s office January 29, 1908, in liber 151 of deeds at page 261.

Lyman M. Wooster, Mary E. Wooster, Maria Parmelee, Clara Hall and Olive Hard, being all of the children and heirs at law of Lyman Wooster, deceased, excepting his daughter Edith V. Crandall, conveyed their right, title and interest in said land to Edward E. Dunn by deed bearing date June 25, 1883. This deed was signed and executed by the several grantors at different times. The only controverted fact in regard to the execution of this deed is as to whether or not its execution and delivery by Mary E. Wooster was attested by a witness. The grantee Edward E. Dunn testified that it was signed in March, 1888, at Susquehanna, Penn., in the presence of himself and of John Pendergast, a notary public, and Frank Page and William Donahu'e; that the notary public did not take the acknowledgment because it could be acknowledged in the State of Hew York and" save sending the deed to Montrose, Penn. , for a certificate; that Frank Page and William Donahue signed as subscribing witnesses at that time. He gave a very fair account of the details of the transaction considering the time which has elapsed since it occurred. It appeared that Pendergast and Donahue died a number of years ago, and that Page was a mechanic in the railroad shops at Susquehanna, that he later moved away and his whereabouts were unknown at the time of the trial. . The grantor Mary E. Wooster testified' that she did not know Frank Page or William Donahue; that she never requested either of them to sign the deed as. witnesses, and that neither of them signed the deed at the time she signed it. On cross-examination, however, she testified that the deed was signed in Susquehanna, but she could not remember the place; that she could not remember who was present beside herself and Edward E. Dunn. She was unable to give any of the details and had very little recollection of the transaction. By an examination of the ink used in writing the signature of Mary E. Wooster, and the signatures of Frank Page and William Donahue, and comparing them with the other signatures and the deed, and from all the evidence- and circumstances, I am led to believe that the execution and delivery of this deed as to Mary E. Wooster was attested by Frank Page and William Donahue. •

Maria Parmelee signed the deed to Edward E. Dunn some time before it was signed by Mary E. Wooster, and its execution and delivery were never attested by a witness. It was acknowledged by Maria Parmalee and Mary E. Wooster March 21, 1908, but after the deed hereinafter mentioned to the plaintiff Jennie F. Dunn was executed and recorded.

Lyman M. Wooster, Mary E. Wooster, Maria Parmalee, Olara Hall and Olive Hard, being all the heirs at law of Lyman Wooster, deceased, excepting Edith V. Crandall, and being the same persons who executed the last-mentioned deed to Edward E. Dunn, also executed a deed to the plaintiff Jennie F. Dunn for the nominal consideration of one dollar, which deed bears date January 28, 1908. It was acknowledged by Maria Parmalee, Mary E. Wooster, Olive Hard and Olara Hall March 9,1908, and by Lyman M. Wooster and wife March 11, 1908. This deed covers the premises described in the complaint and was recorded in Delaware county clerk’s office March 16, 1908, in liber 154 of deeds at page 535.

At the time of the execution and delivery of the last-mentioned deed the grantee, Jennie F. Dunn, had actual notice of the deed from the same grantors to Edward E. Dunn.

In so far as the deed of Edward E. Dunn was acknowledged or attested by a witness it was ahd is prior in time and prior in right to the deed to Jennie F. Dunn even though her deed was first recorded. (Williamson v. Brown, 15 N. Y. 354; Cambridge Valley Bank v. Delano, 48 id. 326.)

In addition to the fact that Jennie F. Dunn had actual notice of the deed to her brother, Edward E. Drum, she was not a purchaser in good faith and for valué. Therefore, she cannot hold as against the prior conveyance in so far as the prior conveyance was acknowledged or attested by a witness. To entitle a subsequent purchaser of real estate to the benefit of the recording act he must not only first record his conveyance, but he must be a purchaser in good faith and for a valuable consideration. (De Lancey v. Stearns, 66 N. Y. 157; Fries v. N. Y. & H. R. R. Co., 57 App. Div. 577.)

The consideration of one dollar expressed in the deed to Jennie F. Dunn though actually paid to each grantor was insufficient to make her a purchaser for a valuable consideration. (Ten Eyck v. Witbeck, 135 N. Y. 40.)

We now come to the question of the legal effect of the unacknowledged and unattested deed from Maria Parmalee to Edward E. Dunn. It has long been the law in this State that “A grant in fee of of a freehold estate must be subscribed by the person from whom the estate or interest conveyed is intended to pass, or by his lawful agent. If not duly acknowledged before its delivery, according to the provisions of this chapter, its execution and delivery must be attested by at least one witness, or, if not so attested, it does not take effect as against a subsequent purchaser or incumbrancer until so acknowledged. ”

This provision of the Revised Statutes (1 R. S. 738, § 137) was re-enacted in the Real Property Law (Laws of 1896, chap. 547 [G-en. Laws, chap. 46], § 208). .It was re-enacted in the Real Property Law (Laws of 1909, chap. 52 [Consol. Laws, chap. 50], § 243).

When the deed from Maria Parmalee to Jennie F. Dunn was executed and recorded the deed from Maria Parmalee to Edward E. Dunñ was unacknowledged and unattested. It was, therefore, invalid as against Jennie F. Dunn, the said subsequent grantee. It was invalid even though Jennie F. Dunn had actual notice of the prior deed., and even though she was not a purchaser in good faith and for value. (Chamberlain v. Spargur, 86 N. Y. 603.)

It follows that Jennie F. Dunn, the plaintiff, is the owner of an undivided one twenty-fourth share or interest in the land described in the complaint.

The deed from Augusta E. M. Dunn to Edward E. Dunn should be set aside. There is no reason in justice or in equity why it' should be sustained. At the time the deed was executed it was well known and fully understood by both parties ' to the conveyance that she was the owner of an undivided eighteen-twenty-fourths share or interest, and he was the owner of five-twenty-fourths. In making the partition and division there was no reason why he should get more than his ■just proportion of the amount and value of the land, and yet he did get nearly one-half of the amount and more than half of the value. This result came about because Edward E. Dunn deceived his mother who relied upon his repeated statements . and representations that the proposed division was- fair and just, and that he was only getting a little more than one-fourth. He now claims that he was mistaken as to the relative amounts in the two parcels. One trouble with this excuse is that the injury and injustice to his mother is just the same whether his misrepresentations were willfully and intentionally false or not. The undisputed fact remains that she relied upon his statements and representations and was thereby woefully deceived and cheated. From the whole evidence it seems clear that this conveyance should be set aside.

The land in question is a long narrow tract extending from the Delaware river south onto the mountain a distance of about two miles. A small portion along the river is cultivated upon which is an old house and a small bam. Here Augusta E. M. Dunn and her husband lived for a number of years and until his death in 1899. Their son, the defendant Edward E. Dunn,, lived there with his father and mother as a boy and until his marriage in 1886. The mother knew very little if anything about the back portion of the tract. The defendant Edward E. Dunn had cut wood and ties upon the premises. About the year 1900 he assisted in surveying the line between the Dunn lot in question and the Humphrey lot in order to determine the location of the division line, and was well acquainted with the land and the location of the boundaries.

A short time prior to June 1Y, 1903, he employed Henry Simpson, a surveyor, to survey a line dividing the tract from north to south. The surveyor with the assistance of Edward E. Dunn surveyed the line and thereby divided the tract into an easterly and a westerly portion. He pointed out to the surveyor where he wanted the line located. The surveyor made a diagram and description of the westerly portion as thus surveyed. It will be remembered that about a year.or two before this time the same surveyor with Edward E. Dunn surveyed and located the Humphrey lot, so called, and which is located west of and adjoining the Dunn tract, and was formerly a part of the Dunn or Wooster tract. There is no doubt but that Edward E. Dunn knew very well when he was having the dividing line surveyed for a division between himself and his mother, that the Humphrey lot had been sold off, and he knew where the Humphrey line was. Notwithstanding this know!edge he caused the surveyor to locate the line between himself and his mother where he would get nearly one-half of the land and more than half of the valúe.

On the 17th day of June, 1903, he took this» diagram and description' of the westerly portion to Port Jervis, where his mother was there temporarily residing. He arrived at her home in the' forenoon and procured from her the old deed of the entire tract, and told her he was going to have a deed drawn for a division. He then employed an attorney at law at Port Jervis who prepared a deed conveying the easterly portion to Augusta E. M. Dunn, hut did not have his wife join in the conveyance. The attorney also prepared a deed from Augusta E. M. Dunn to Edward E. Dunn of the westerly portion, using the description made from the survey by Henry Simpson and Edward E. Dunn. Edward E. Dunn then returned to his mother’s residence with the attorney and requested her to execute the deed. She objected to doing so and said that she knew nothing about it. He represented and stated to her repeatedly that it was all right, that he was getting only a little over one-fourth. He and his' attorney remained two hours or more and" he continued to urge her to execute the paper. He told her that he had had it surveyed and that she was getting by the proposed division 500 acres; that the barn was on her portion and also the spring. She finally requested him to wait until her daughter, Jennie F. Dunn, should return. When the daughter came he said he had deeds for á division and that he was getting a little more than one-fourth; that he had it surveyed and his mother’s part was 500 acres, and that he would not take anything but what was right. After the various statements and representations by Edward E. Dunn that the deeds were .correct, and made a fair and just division, Augusta E. M. Dunn executed the deed to him and received the other deed of the easterly portion.

As a matter of fact the deed to Edward E. Dunn conveyed to him 295 acres, and the deed from him to his mother con- , veyed about 322 acres. The portion conveyed to him contained a large part of the timber and was the most valuable. It gave him about three-fourths of the frontage on the river. The spring and barn, instead of being on the mother’s part, were on the part conveyed to him. He admits that he told his mother the deeds were aE right, and that he was only getting a little more than one-fourth, and that he urged her to execute the deed to him. He admits that he misrepresented the amount of land which he would get, hut says that he did not intend to do so. Thereafter a quantity of timber was sold off and three-fourths of the proceeds were paid to his mother and one-fourth was paid to him. When the mother learned' that she had been induced to convey much more than she supposed or intended to convey she protested to him, and brought a suit to have the deed set aside. And while he admits that he misrepresented the facts to his mother and thereby induced her to convey more than she ever intended to convey, and more than she should have conveyed, still he never offered to reconvey or make restitution for the admitted wrong, thereby clearly indicating that he intended to do just what he did do. Under aE these circumstances and conditions his claim that he did it under an honest mistake cannot be accepted.

At the time the deeds were executed she was sixty-nine years of age and he was forty-four. WhEe they had both lived on the .premises for a number of years she knew substantially nothing about the conditions and boundary line on the back portion. He had helped to locate the line of the Humphrey lot and had worked in the woods and was familiar with the whole tract, and she had good reason to trust and rely upon him in the matter. The confidential relations between them were such that she was justified in reposing faith in what he said. She was informed that he and Mr. Simpson had surveyed it for the purpose of a division, and she was led to believe that he knew the facts and conditions, and she had the right to believe that what he told her was true. Under such circumstances and conditions the burden of proof was upon him to show affirmatively that the transaction was fair and honest and that no advantage was taken by him. (Barnard v. Gantz, 140 N. Y. 249; Nesbit v. Lockman, 34 id. 167; Cowee v. Cornell, 75 id. 99.)

Even assuming that the conveyance was a mistake on the part of Edward E. Dunn, which assumption cannot be indulged in in this case, the conveyance was a fraud upon the rights of the mother and should be set aside. The division actually made was so different from the one intended and so materially detrimental to Augusta E. M. Dunn, all of which was induced by the misrepresentations of Edward E. Dunn, a court of- equity should not deny relief even though the misrepresentations were made by him under a misapprehension of the facts.. Courts of equity may give relief in cases of mutual mistake unaccompanied -by fraud where the subject of the conveyance is so materially variant from what the parties supposed it to be that the substantial object of the conveyance has failed. (Stevens v. Melcher, 152 N. Y. 575; Dale v. Roosevelt, 5 Johns. Ch. 174; Beardsley v. Duntley, 69 N. Y. 577.)

It has also been held that where the owner of a farm innocently but untruly states the quantity of land contained therein, and a purchaser in reliance upon the statement enters into a contract and takes a deed and -subsequently discovers that the quantity is-materially less than that stated, he is entitled to the interposition of a court of equity to correct the mistake, and the court will set aside or reform the deed as may best suit the particular case. (Paine v. Upton, 87 N. Y. 327.)

The facts and circumstances of this case are sufficient, however, to require the setting aside of the deed without regard to the confidential relations which existed between Augusta E. M. Dunn and her son. From the whole case it is clear that a court of equity should interpose and right this serious wrong so far as possible and set aside the deed from Augusta E. M. Dunn to Edward E. Dunn as fraudulent and void, together with the conveyance from him to her, and let the parties be restored- to their rights as though the deeds had never been executed.  