
    Case v. Case et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1888.)
    1. Trusts—Action to Establish—Setting Aside Deed.
    In an action to set aside a deed given, without any consideration, by plaintiff to> her brother, it appeared that there was no intentional fraud on the part of the-brother which led to the making of the conveyance, but that plaintiff executed it for the purpose of keeping her property from the control of her husband, who was-endeavoring to have her declared insane. It also appeared that, prior to the execution of the deed, the brother declared that he would do what was just and right, to preserve the property for her use and enjoyment. Meld that, as a confidential relation existed between them, a judgment setting aside the deed should be affirmed.
    2. Fraudulent Conveyances—By Trustee to Beneficiary’s Husband—Action to-
    Set Aside.
    In an action to set aside a deed to her separate property, given without any consideration by plaintiff to her brother, for the purpose of keeping it from the control of her husband, and also to set aside a deed subsequently given by her brother toller husband, the husband cannot urge as a defense that the first deed was given to defraud him of his rights, where there is nothing to show that he had any rights in the property.
    8. Appeal—Review—Waiver of Objections.
    In such case, a witness for defendant testified that, when the deed from plaintiff to her brother was executed, the brother gave plaintiff a roll containing bank-bills,, which she counted, and said were all right. Plaintiff testified that it was a roll of' brown paper which was given her; that she made a pretense of counting it, but there was no money in it; and identified a certain package as the identical roll-handed her. Defendant objected that, as the brother was insane, plaintiff was incompetent as a witness, under Code Civil Proc. § 829, prohibiting a party to a transaction from testifying thereto where the other party is insane. The court of its own motion struck out all the testimony except that relating to the identification-of the package, and defendant took no exception. Meld, that defendant thereby-waived all objection to the incompetency of the testimony retained.
    Appeal from special term, Orleans county.
    Action by Parmena M. W. Case against her husband, Enos Case, her-brother, Melville W. Wild, and others, to set aside certain deeds and mortgages. Plaintiff was the owner of a house and lot situated in the town of Clarendon, of the value of $1,300; and on the 19th'day of January, 1885, conveyed the same to the defendant Wild without consideration. Subsequently, on the 22d day of January of the same year, Wild executed and delivered to-defendant Case a mortgage upon the said premises, to secure the payment of $000, which was also without any consideration. On the 4th day of February, Wild executed another mortgage on the premises, running to plaintiff, for the sum of $900, and subsequently thereto, on the 5th day of May, 1885,-Wild conveyed the premises to defendant Case. Defendant Case appeared and answered, and the other defendants made default. The case was heard before a referee, who found for plaintiff, and the special term affirmed his report, and rendered a decision for plaintiff, and from the j udgment entered thereon defendant Case appealed.
    Argued before Barber, P. J., and Haight, Bradley, and Dwight, JJ-
    
      Keeler & Salsbury, for appellant. John H. White, for respondents.
   Barker, P. J.

The referee has found that the deed from the plaintiff to the defendant Wild was without consideration. The evidence supports this finding, although there is some proof in support of the admission, contained in the deed, that a consideration was paid by the grantee, and accepted by the grantor. Our own examination of the case leads us to concur with the referee on this question. The conveyance being without any consideration, the next inquiry which naturally presents itself is, what was the object and purpose-of the grantor in conveying all of her property to her brother, for she had none other than the real estate mentioned? The referee has found that the conveyance was the result of an arrangement, entered into between the plaintiff and her brother, by which she was to convey the house and lot to him for the-purpose of keeping the same away from the control and management of her husband, and to preserve the property for her own use. There is nothing in the history of the transaction which indicates that the plaintiff intended to-make a gift of the property to her brother, as that would place her in a condition of absolute want and destitution. Every fact and circumstance discussed on the trial is in confirmation of the referee’s finding that the grantee-assumed and promised and agreed to hold and manage the property for the use and benefit of the plaintiff. The trustee disregarded his promise and his duty, and, immediately on receiving the deed, assumed to be the absolute owner of the house and lot, and incumbered the premises by a mortgage to the plaintiff’s husband, and afterwards conveyed the same to him in fee, without any consideration for either conveyance. The judgment restores to-the plaintiff the title to the property, free from the mortgage executed to her husband, and ajl the parties stand in the same legal relation to the property as they did before the conveyance. The referee has not found that the defendant Wild was guilty of any fraud or fraudulent misrepresentation in his negotiations with the plaintiff for the conveyance of the property; or that the parties acted under any mutual mistake, as to any fact or circumstance relative-to the subject-matter under consideration.

The appellant contends that, in the absence of intentional fraud on the part of Wild, the plaintiff failed to make a case for relief either at Jaw or in equity, and the judgment should be reversed. As the grantee made no promise in writing to take and hold the property for the use of the plaintiff, and as. he was not guilty of any act or misstatement which, in the opinion of the referee, amounts to a positive fraud, the judgment must stand, if it is sustained upon some other view of the case which amounts to a constructive fraud on. the part of the grantee, according to well-settled equitable principles, and for that reason the plaintiff was entitled to the relief granted. It was not necessary for the plaintiff to show affirmatively, in order to procure relief, that the-defendant acted with a fraudulent intent in procuring the deed. A court of .equity will interpose its jurisdiction to set aside instruments between persons ■occupying relations in which one party may naturally exercise an influence over the conduct of the other party. Boyd v. De la Montagnie, 73 N. Y. 498. The rule, as deduced from a great number of cases in England and this •country, is stated by Mr. Story as follows: “If confidence is reposed, it must .be faithfully acted upon and preserved from any intermixture of imposition. If influence is acquired, it must be kept free from the taint of selfish interests .and cunning and overreaching bargains. If the means of personal control .are given, they must be always restrained to purposes of good faith and personal good.. The general principle which governs in all cases of this sort is •that, if confidence is abused, courts of equity will grant relief. ” 1 Story, Eq. •Jur. § 308. In speaking of the policy of the law on this subject, he also says: “ The law, with a wise providence, not only watches over all transactions of parties in this predicament, but it often interposes to declare trans.actions void which, between other persons, would not be held objectionable. It does not so much consider the bearing or hardship of this doctrine upon particular cases as it does the importance of preventing a general public mis-chief which may be brought about, by a means secret and inaccessible to judicial scrutiny, from the dangerous influence arising from the confidential .relation of the parties.” Id. § 310. At the time the deed was executed and • delivered, the donee of this gift occupied a close confidential relation towards ;the plaintiff, who is his sister; and the transaction embraced her entire estate, so that at the age of 60 and upwards she is left penniless. While the .negotiations were going on between these parties, which resulted in the mak:ing of this deed, the plaintiff was in great distress of mind, and anxious to preserve for her support and maintenance the house and lot, and to keep it .from the use and control of her husband, with whom she did not at that time .live, and who had instituted proceedings for the purpose of having her declared insane and incompetent to transact business; and the same were pending at the time the conveyance was executed. During the consultations which preceded the execution of the conveyance, Wild declared to his sister •.that he would be true to her, and to her interests, and do what was just and right to preserve the property for her own use and enjoyment. We omit to ¡state in detail the facts and circumstances which tend to establish that confidential relations existed between the parties, and that the grantee possessed' .the confidence of the grantor, and that the conveyance was made upon his ¡suggestion and advice. The appellant on the trial did not take the position ■.that the conveyance of the house and lot was intended as a gratuity on the part of the plaintiff, and was made without the exercise of undue influence •on the part of the donee, and that the conveyance should be sustained as a voluntary gift. On the contrary, his position then was that the deed was to .carry into effect a bargain and sale of the property, and that a full consideración was actually paid therefor. In cases where confidential relations exist between the parties, the person obtaining the benefit must show, by the clear-est evidence, that the gift was freely and deliberately made. The burden is .upon the person receiving the gift to show that the transaction was fair and honest. Sears v. Shafer, 6 N. Y. 268; Ford v. Harrington, 16 N. Y. 285; Boyd v. De la Montagnie, supra. This the defendants have signally failed to do.

The j udgment should be sustained unless some other ground can be stated •which is sufficient for denying the plaintiff relief. The appellant insists that •.the conveyance was made for the purpose of cheating and defrauding him out •of his rights and interest in the property, as the husband of the plaintiff, and for that reason the plaintiff should be denied any remedy, for the purpose of regaining the title to the property. The general rule that courts will extend no remedy to a grantor or vendor of property, to recover back from the grantee or assignee the property transferred to cheat and defraud third persons, although the transfer was without consideration, as where the debtor conveys his property to another person, with a purpose of cheating and defrauding his creditors, has no application in the case. The appellant had no estate or interest in the premises, legal or equitable, at the time of the conveyance. The plaintiff had a legal title to the premises, although they were bought and paid for by her husband, as they were conveyed to her by his direction, and with his consent, and she had the right to give away the same. The finding of the referee on this subject is that the conveyance was made to Wild on the strength of his promise to keep and preserve the premises from being squandered by her husband, not that the same was made to deprive him of his rights or interests in the property. The referee was requested by the defendant to find that the deeds were executed by the plaintiff with the intent on her part to put the premises beyond the reach of her husband in any action or proceeding which he had or might thereafter institute to enforce any claim he might have to any interest therein, and he refused so to find. The referee has not found, nor was he requested by the appellant to find, any fact which in law or equity would entitle the plaintiff to any share or interest in the premisesÍTor are we able to discover any evidence from which a state of facts can be fairly deduced which in equity would give him any right or interest in the-lands as against the plaintiff’s legal title. There is therefore nothing in the case calling for the application of the doctrine which the defendant invokes-The appellant is in no position to question that part of the decree which keeps on foot the mortgage, given to the plaintiff by Wild, which she had assigned to the defendant White for a limited purpose.

On the trial the plaintiff called and examined as a witness in her own behalf the officer who prepared the deed and took her acknowledgment, and who-gave evidence on his direct examination tending to prove that the grantee, at the time of the delivery of the deed, paid to the plaintiff the money consideration expressed in the deed. He testified, in substance, that when the deed was ready for delivery he mentioned to Mr. Wild that the plaintiff was entitled to her pay, and that he then put his hand in his pocket, and took out a, package of "brown paper, and handed it to the plaintiff, and said, “There is your money; count it, and see if it is all right;” that the plaintiff accepted the package, and unrolled the same, and counted its contents, and he was sure-there were some bank-bills in the package; that Wild then asked the plaintiff' if it was all right, and she made the reply that it was, and that they then left-the office together. This witness was not cross-examined by the appellant. The plaintiff was then examined as a witness in her own behalf on the same-subject; that is, relative to the payment of the money by Wild to her on that occasion, and the appellant claims that her evidence was received in violation of the provisions of section 829 of the Code, as Wild was then insane. If the-question had been presented to the attention of the trial court by a proper and timely objection, it would merit a careful consideration. It was conceded that at the time of the trial Wild, the grantee, was insane. Case, the appellant, claims under him. The fact of Wild’s insanity was not disclosed to-the court until after some of the rulings were made which the appellant now claims to be erroneous. While the plaintiff was being examined as a witness, her counsel called her attention to the evidence which Puller bad given as to the payment of the purchase money mentioned in the deed, and she stated that she heard the evidence as given by him. She was then asked this question; “How much money was there in that transaction? What was it that you counted there?” To this question the appellant made a general objection, and the judge made no ruling, but remarked; “I think she may state what money she counted, if any,—what she did and what money she counted. ” The counsel for the appellant then interposed the objection that the evidence related to a transaction with an insane person, and was incompetent, under section 829 of the Code. The objection was overruled, and an exception taken. toy the defendant. After this objection was interposed, and an exception taken, the case then states that “it was here conceded by the plaintiff that the defendant Wild was then insane, and had been since the 8d of December, 1885. ” Then follows the balance of the plaintiff’s evidence, and the ruling of the court thereon, and the defendant’s exception thereto, all of which is here copied, viz.: “I had some papers cut up, and something that looked like money, and had them in a roll, and he handed them to me, but he did not give me any money at all. I counted what was called money. He didn’t give me any real money. [Some papers were then shown the witness.] Those are the identical papers. My brother gave me no money at all. Question. Is this the bundle here which Mr. Fuller swears your brother handed you at the time?” The defendant Case objected to the question, on the ground that it called for apart of a transaction with an insane person, and upon the ground that the witness was incompetent. “By the Court. I think the better way is to ask her what she counted. Question. What did you count? Did you count those. Answer. Yes, sir; I looked them over in pretense. Q. These things here which I hold in my hand? A. Yes, sir; yes, those papers were in my hand. There was no money about it. I had no money, and my brother had none. The papers have faded now. They were good color when I had them, but now they are not, and those are the identical papers. By the Court. This is what you counted, is it? A. Yes, sir; I kept it down close and snug, and he never paid me any money, in any shape or manner." The defendant Case here excepted to the admission of the testimony of this witness as to the transaction •in reference to the money, and the counting of it, at Fuller’s office. “By the Court. Yes; to that which is in evidence. The only thing in evidence, admitted, is that this package now in evidence is the package she counted. All the rest stricken out. Simply that that is the package she counted. Package of papers were marked ‘ Exhibit One.’ ” It will be observed that the defendant took no exception to any ruling of the court after it was brought to the attention of the court that Wild was insane. All the evidence given by the plaintiff bearing on the question of payment, and the manner of making it, was stricken out by the court on its own motion, except the single statement, made by the plaintiff, that the package produced and exhibited to her while on the stand as a witness was the identical package which her brother handed her, which, with its contents, was referred to and described by the witness Fuller while upon the stand. When this evidence was given no objection was made to its reception, nor was any motion afterwards made to strike the same from the record. Excluding from the case the evidence which the court ordered to be stricken out, the plaintiff’s evidence which remained does not contain any statement as to the contents of the package, or the appearance of the same. The appellant took no exception to the ruling of the court retaining so much of the plaintiff’s evidence as has been mentioned. If the plaintiff was disqualified, as a witness in her own behalf, from testifying as to the identification of the package which she claimed was delivered to her by her brother, the appellant waived all objection to its incompetency, and cannot on this appeal claim that the same was erroneously received. We therefore do not pass upon the question whether the evidence was competent, within the rule as stated in Lewis v. Merritt, 98 N. Y. 206, and Pinney v. Orth, 88 N. Y. 447. Judgment affirmed, with costs.

All concur.  