
    (88 Hun, 412.)
    PRITCHARD v. PALMER et al.
    (Supreme Court, General Term, Fourth Department.
    July 5, 1895.)
    1. Fraud—Evidence.
    In an- action to set aside a deed as procured by fraud, the fact that nothing was done about the acknowledgment of the deed is evidence of the fraud.
    3. Deed—Witness.
    A person has no right to become a subscribing witness to a deed unless he is requested by the grantor.
    3. Parties—Participation in Fraud.
    In an action to set aside a deed made by plaintiff, as having been procured by fraud, a person- who participated in the transaction by which plaintiff was induced to execute the deed, though he derived no benefit therefrom, is a proper party, and may be charged with costs of the action.
    Appeal from special term, Oneida county.
    Action by Lydia Pritchard, individually and as executrix of- William Dickerson, deceased, against George S. Palmer and Selden Palmer. Judgment was entered in favor of plaintiff, and defendants appeal.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Evans & Kneeland, for appellants.
    Sayles, Searle & Sayles, for respondent.
   MERWIN, J.

This action was brought in February, 1893, to set aside a deed dated March 1,1892, from the plaintiff, then Lydia Dickerson, to the .defendant George S. Palmer, and a contract or lease of same date from plaintiff to defendant George S. Palmer and Nettie Palmer, his wife. Another action was brought at the same time by the plaintiff • against the same defendants and others, the heirs of Nettie Palmer, deceased, to set aside a deed dated March 1, 1892, from the plaintiff to Nettie Palmer, and also the same contract or lease. These actions were tried together, and in each case it was decided and adjudged that the deed and contract described in the complaint were fraudulent and void, and that the same should be delivered up to the plaintiff, and canceled of record; that the defendants never obtained any rights by or under the deed or contract, and that the plaintiff is entitled to the possession of the real estate described in the deed and contract, and the avails and proceeds from March 1, 1893. Both judgments are appealed from, and the appeals are argued on the same papers, the same questions being in substance involved in each case.

William Dickerson, of Rome, N. Y., died on May 2, 1891, then being the owner of a farm of 250 acres and upward in the town of Ava. He left a will, afterwards duly proved, by which his widow, now the plaintiff, either became the owner of the farm, or had the right, individually or as executrix, to convey the same. The farm was then occupied by a tenant by the name of Castle, under a written lease with William Dickerson, commencing March 1, 1891, for the term of one year, with the privilege of five years if both parties agree. The plaintiff, just prior to March 1, 1892, had made an arrangement with Castle to leave at the end of the year. The three instruments in controversy were drawn by the defendant Selden Palmer, the father of George, and were signed by the plaintiff, then Lydia Dickerson, at a house near the farm. By the terms of the contract, the party of the first part, Mrs. Dickerson, agreed to give to George Palmer and his wife warranty deeds of that portion of the farm north of a certain road, included in lots Nos. 3 and 4, and to lease the remainder of the farm during her natural life, not exceeding 12 years, at an annual rent of $300 a year; she reserving the right to go and live with the parties of the second part upon the farm whenever she chose, by paying a reasonable compensation for her board. The deeds were absolute conveyances with warranty, and each covered about 100 acres, of the value of about $2,500. None of the instruments were read over at the time. The deeds were not acknowledged, and nothing was said about it at the time, nor did any one then sign as an attesting witness. All the papers were taken away by the defendants, or one of them. The defendant Selden Palmer, after his return to Borne, and on the 3d March, signed them as a subscribing witness; and he, on the 7th May, 1892, as a subscribing witness, acknowledged the deeds, and they were recorded on May 9, 1892. Previous to this, and on the 14th or 15th of March, as the defendant Selden Palmer testifies, the plaintiff refused to acknowledge them. Nettie Palmer died on March 27, 1892. The defendant George has been in possession since March 1st, and he has paid one year’s rent. The plaintiff was then nearly 78 years old.

It is found by the special term that the plaintiff, at the time she signed these papers, did not know their contents, and that neither of them was read or described to her; that the deeds and contract were executed and came to defendant without any consideration; that the defendant Selden Palmer was then, and for a long time prior thereto had been, the agent and confidential adviser of the plaintiff, and the execution of the papers was procured by him and the defendant George, without knowledge on the part of plaintiff as to their contents or purport; that, by the acts and conversation of the defendants, the plaintiff was led to believe and did believe, when she executed the instruments, that she was only executing a lease such as had been entered into between her former husband and Castle, and did not intend to execute, and did not know that she was executing, papers of the character of those in controversy, but relied solely on the defendant Selden Palmer to properly transact the business of making a lease of the farm similar to the Castle lease; that the defendant Selden Palmer was never requested to witness the papers or sign as a subscribing witness, and his signing as such was without plaintiff’s knowledge or consent, and he had no right or authority to acknowledge as subscribing witness; that the defendants were guilty of fraud, misrepresentation, and deceit in procuring from the plaintiff the deeds and contract. The appellants claim that these findings of fact are not in their main features sustained by the evidence; that the deeds were executed in pursuance of a promise made in 1885, in consideration of the marriage of the said George and Nettie; and that the plaintiff knew of the character of the papers, and intentionally executed them. The existence of a promise in 1885 is based on a letter claimed to have been then written by William Dickerson, or by his authority, to the defendant George. The court, however, declined to find that any such letter was written, and there is evidence which tends to support that conclusion. Besides, there is evidence tending to show that, if there was any promise or agreement of that character, it was afterwards abandoned. The trial court, in effect, found that, prior to the execution of the papers in controversy, there was no obligation or duty on the plaintiff that furnished any valuable consideration. This conclusion is fully justified by the evidence.

Assuming, then, as I think we must, that there was here, if these deeds are good, an absolute gift to George Palmer and his wife of property to the value of $5,000, the question arises whether plaintiff intended to make it, or, in other words, whether she understood the character of the papers she signed. The trial court, after seeing all the parties, and hearing them testify, has found that she did not. The fact that at the time of the transaction nothing was said or done about any acknowledgment of the execution of the deeds is quite significant in favor of plaintiff’s theory. No satisfactory explanation is furnished by the defendants of the entire silence on the subject. The fact that one of the defendants afterwards, without the request or knowledge of plaintiff, signed as witness, and as such, after plaintiff refused to acknowledge, proceeded to acknowledge and have the deeds recorded, does not help the defendant’s situation. He had no right to make himself a subscribing witness. Hollenbach v. Fleming, 6 Hill, 303; Henry v. Bishop, 2 Wend. 575.

Concededly, the papers were not read over at the time, but the defendants claim that they were previously read to the plaintiff. Whether they were so read that the plaintiff understood their character was a question of fact for the trial court to determine; and in yiew of the surrounding circumstances, and such light as might be furnished by the situation and appearance of witnesses, we are not prepared to say that the conclusion of the trial judge is against the weight of the evidence. We are of the opinion that the findings of fact by the trial court should not be disturbed.

It is claimed by the defendant Selden Palmer that he was not a proper party, and that as to him the complaint should have been dismissed. He was an actor in the transaction, and in similar cases it has been held that a person in his situation was a proper party, and chargeable with the costs. Brady v. McCosker, 1 N. Y. 214; Huggins v. King, 3 Barb. 619; Hammond v. Machine Co., 20 Barb. 378, 384; Story, Eq. Pl. § 232.

Our attention is called to a number of rulings on evidence. These we have examined, but we find no sufficient ground for reversal. It follows that the judgment should be affirmed. All concur.

Judgment affirmed, with costs.  