
    Margaret Sistare, Resp’t, v. Austin Hecksher, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    Deed—Fraud.
    Plaintiff, while entertaining a visitor, was taken aside by her husband, who appealed to her to deed certain property to defendant with the assurance that it was a mere matter of form and that if it were done money would be advanced to aid his firm in extricating themselves from embarrassment. In pursuance of this appeal plaintiff conveyed the property, but in fact the conveyance was to serve as security for an existing indebtedness of the firm. Held, that the deed was procured hv undue influence and should be set aside, although defendant did not authorize the husband to make the representations or procure the deed in said manner or did not know of it.
    Appeal from a judgment entered at special term in an action to set aside a conveyance on the ground of misrepresentation and fraud.
    
      James G. Janeway, for app’lt; Henry S. Bennett, for resp’t.
   Patterson, J.

We see no reason for disturbing the judgment here appealed from. The merits of the controversy are decidedly with the plaintiff, and the findings of the learned judge in the court below are abundantly sustained by the evidence. All the circumstances surrounding the execution and delivery of the deed; the suddenness of the demand or appeal made upon the plaintiff by her husband to rescue his firm from an impending peril; the assurance to her that it was but a matter of form; tho added representation that if the property were conveyed to. the defendant money would be advanced to aid the firm of Sistarc k Go. in extricating themselves from embarrassment; the further fact that all the details for a transfer of this property from tho plaintiff to the defendant had been previously arranged by Mr. Sistare and the defendant or others, under the advice of counsel and without the knowledge of the plaintiff, who, totally ignorant of her husband’s condition or what was in contemplation, wq.s appealed to while entertaining a caller at her house; taken aside while her visitor was waiting and then induced to consent, and above all, so far from the purpose of the transfer being to secure the defendant for advances then or thereafter to be made, it being merely to serve as security for or payment of an indebtedness already existing of Mr. Sistare’s firm to persons represented by the defendant; all these circumstances and facts clearly indicate that there was but one course to be pursued by the learned judge, and that course he followed. The deed was obtained by undue influence, and in a certain sense by coercion, and seems to have been executed and delivered under circumstances and conditions quite similar to those in Barry v. Equitable Life Assur. Society, 59 N. Y., 587, where an assignment by a wife of policies of life insurance was pronounced to be invalid.

It is not material that the defendant did not authorize the husband to make the representations or procure the execution of the deed in the manner above referred to, or did not even know of it. The real question is as to what was actually done and said by Sistare in procuring the conveyance. As was remarked by Lord Eldon in the great case of Huguenin v. Baseley, 14 Vesey, 273, “ I should regret that any doubt could be entertained whether it is not competent to a court of equity to take away from third persons the benefits which they have derived from the fraud, imposition or undue influence of others.” See also Whelan v. Whelan, 3 Cow., 537; Bergen v. Udall, 31 Barb., 9.

The learned counsel for the defendant has strenuously argued that the fraud set up here consisted only in promissory representations, and that as it is a well settled rule that a mere failure to perform a promise in consideration of which land or other property has been transferred, does not furnish of itself evidence of fraud in the transaction, this suit cannot be maintained. It is unnecessary to consider either the statement made of the rule or its application to abstract cases, for we are fully satisfied in the case at bar that under all the proven facts as properly found by the court below, justice requires this conveyance to be set aside; that Mrs. Sistare did not intend to convey her property to pay or secure her husband’s past due debts and obligations, or those of the firm of which he was a member, and that the controlling influence of her husband over her, at the time and under the circumstances of the execution of the deed, makes out, with the other facts above referred to, a proper case for relief.

There are exceptions in the record raising other questions, but it is unnecessary to consider them in detail. The objection to the admission of the testimony of the plaintiff as to what took place between her husband and,herself at the conversation of March 15, was properly overruled. It was part of the res gestee, and thus admissible. Potts v. Hart, 99 N. Y., 168.

The judgment must be affirmed, with costs.

Yan Brunt, P. J., concurs.  