
    Jacob Friedman, App’lt, v. Herman Hirsh, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Deed—Fraud—Security eor grartee.
    " In an action brought for the purpose of having declared null and void for fraud a deed executed by the plaintiff to the defendant, whereby he conveyed a vested remainder, it appeared that at the time of the transfer plaintiff had just passed his twenty-first year, and the only evidence of fraud was that the price paid was only between one-third and one-fifth of the value of the remainder. Held, that relief should be granted plaintiff, although the proof of fraud was not clear and satisfactory, but the deed allowed to stand as security for the sum paid by defendant.
    Appeal from judgment entered after trial at special term. •
    
      Samuel Greenbaum, for app’lt; William Irwin, for resp’t.
   Van Brunt, P. J.

This action was brought for the purpose of having declared null and void, and cancelled of record, a certain deed executed by the plaintiff to the defendant, whereby he conveyed a vested remainder which he owned in certain premises in the city of Hew York.

It appeared from the evidence in the case that the premises were of the value of at least between $14,000 and $15,000, and probably more; and that they were owned by the plaintiff and his brother and were subject to a mortgage of $10,000 and the life 'estate of the father.

At the time of the transfer the plaintiff had just passed his twenty-first year, and the interest in question- was sold for the sum of $300. And it was claimed that it was done while he was intoxicated and incapable of protecting his own interests, and that he was overreached and defrauded by the defendant in making the sale. The court below found from the evidence that the plaintiff was not intoxicated and incapable of exercising judgment and discretion with reference to what' he was doing at the time he made this sale; that on the contrary, he knew perfectly well what he was doing, and it was at his instigation that the defendant made the purchase in question; and that the case was one of those in which a court of equity would not interfere without convincing proof of such allegations as those contained in the complaint;. and that there was nothing so oppressive or so wrong in the transaction as to require in furtherance of justice that anything further should be done than to leave the parties just as they are; and that “ inadequacy of consideration is not of itself a ground for setting aside the conveyance, and so long as there was no element of fraud, oppression or deceit on the part of defendant, and the whole transaction was conducted in such a way as would indicate that the conveyance was made at the procurement of the plaintiff, and on his express wish and with full knowledge of the surrounding circumstances, and with a determination to do just what he did, there are no equities which eall for the interference of the court.”

It is claimed upon this appeal that the plaintiff being a remainderman is entitled to greater protection at the hands of the court than are persons dealing with their own property, and our attention is called to the rule which has obtained in the English courts, that dealings of heirs in reference to their expectancies and of reversioners and remaindermen in reference to their vested property are the subjects of special protection by courts of equity, and transactions by persons belonging to those classes are set aside upon much slighter grounds than those which ordinarily obtain.

This rule, however, has not been enforced by the courts of this country to the extent which has prevailed in the courts of England; and the evident inclination of the courts of this country has been to restrict the rule in as great a degree as possible. This is shown by the decision, of the court in Parmelee v. Cameron, 41 N. Y., 392, where they would not apply the rule to the sale of a legacy payable at a future day.

But where there is a gross inadequacy of price, that alone will raise'a presumption of fraud in some instances and form a sufficient basis to grant relief. It is true that cases of interference simply upon this ground are few; and in most instances in which a party has been relieved from an improvident bargain there have been circumstances of a suspicious character connected with the transaction, or something in the relations of the parties which renders it inequitable that the party should retain the advtantages he received by his bargain. But in other cases, where there is no positive evidence of fraud, but the inequality of the bargain is so gross that the court cannot resist the inference that though there may be no direct evidence of fraud such a bargain must have in some way been improperly obtained, relief has been granted.

In the case at bar there is a dispute in regard to the value of the property; the evidence ranging from $14,000 to $18,000. The learned judge below thought the property was worth $14,000 to $15,000. There was a mortgage of $10,000 upon it, and a life estate, the life tenant being forty-eight years of age. There was, therefore, an equity of redemption of $4,000 to $5,000 at least subject to the life tenancy.

In the points of the respondent it is stated that according to the tables the expectancy of life of the tenant is nineteen years, and if the learned judge took this statement as to the expectancy it may have very largely influenced his judgment. ■

But upon our examination of the tables it would appear that instead of the expectancy being nineteen years it was a little above nine and one-half years, which makes a vast difference in the value of the remainder. And, therefore, if the total value of the premises was between $14,000 and $15,000, the amount paid was about one-third of the value of the remainder; if it was $18,000, it was between one-fifth and one-sixth of its value; gross inadequacy being apparent. It is, of course, not to be expected that the purchaser of such a remainder will pay the full value as shown by the tables; but where the difference is so large as it seems to be in this case, it seems to us that the relief should be granted, although the proof of actual fraud may not be clear and satisfactory.

In the case of Dunn v. Chambers, 4 Barb., 381, the rule is stated that it is not unusual for a court of equity, where the proof of actual fraud is not clear and satisfactory, to make the conveyance subservient to the whole ■ equity of the case. While it refuses to declare the deed absolutely void it will direct that it shall stand as security for the sum actually due.

It seems to us that the circumstances of the case at bar were eminently adapted to this middle course. Complete justice may be done to all parties by allowing the deed to stand for the defendant’s indemnity as was done in Boyd v. Dunlap, 1 Johns. Ch., 478. The defendant should be paid his costs of the action, including costs of this appeal and a reasonable counsel fee for defending this action, if this disposition of the case is accepted by him.

A new trial, however, will be necessary to carry out these views, and such new trial is ordered accordingly.

O’Brien, J., concurs.  