
    Ludlow W. Valentine, an Infant, by Guardian ad litem, Resp't, v. Herman T. Richardt et al., App'lts.
    
    
      (Court of Appeals,
    
    
      Filed April 14, 1891.)
    
    Deed—Fraud—Money judgment.
    During the life-time of plaintiff’s mother she conveyed certain. real estate to defendant Richardt; and this action was brought to set aside the deed, as without consideration and as procured by fraud, both of which were found as facts by the jury. R. had sold the property to innocent third parties, and received the money. Plaintiff’s complaint also asked “ for such further or different judgment or relief as may be just.’’ Held, that as defendant had conveyed the property away to a purchaser in good faith, and received the money, a court of equity had the power to cpmpel him to pay this money and its accumulations to plaintiff in place of the land, and that to this end a personal judgment was proper.
    Appeal from .judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff. New York who had been dealing in plaintiffs’ milk. Desiring to continue his dealings with the plaintiffs they required him to procure from his father-in-law, Charles Gedney, a guaranty, and thereafter he procured Mr. Gedney to execute and deliver to plaintiffs the following instrument:
    
      
      William C. Beecher, for app’lts ; Horace Secor, Jr., for resp’t.
    
      
       Affirming 35 N. Y. State Rep. 641.
    
   O’Brien, J.

The plaintiff is the infant son and sole heir at law of Catharine A. Valentine, deceased, and by his guardian ad litem brought this action to recover certain real estate which was conveyed by his mother in her life-time to the defendant Richardt. The litigation took the form of an action to set aside a deed given by the plaintiff’s mother to said Richardt on the 7th of June, 1886, of the house in which she then resided, in the city of Brooklyn, on the ground that, the conveyance'was without consideration, and was procured from the grantor by fraud and undue influence. This -charge presented a question of fact which was tried by the court with the aid óf a jury, and the findings are all in favor of the plaintiff. It is expressly found that the conveyance was without any consideration, and that it was procured by fraud and undue influence on the part of the grantee. These findings are conclusive upon us, as they are not without evidence to sustain them. It further appears from the findings that on the 27th of October, 1886, the defendant Richardt conveyed the property to one Susan A. Austin in consideration of $12,000, which was paid, and about a year thereafter she mortgaged the same to Elizabeth H. Lunt to secure the payment of $9,000, which was advanced on the faith ■of the mortgage.

The subsequent grantee and mortgagee above named were made parties to the action. The court found as to them that they took their conveyances respectively in good faith and for a valuable consideration and that the.action could not be maintained against them, and, so far as concerned them, dismissed the complaint. The court directed a money judgment against the defendant Richardt for the sum of $20,063.22, that being the value of the property at the time of the conveyance to him, with the interest tlicrcon from that date, with annual rests, he being a trustee ex maleficio. The only question of law involved in the case is whether this judgment could properly have been rendered against him upon the findings and pleadings in the case. The relief demanded in the complaint was that the conveyance by plaintiff’s mother to Richardt, and by him to Mrs. Austin, and the mortgage by her to Mrs. Lunt, be declared void and cancelled, and “for such further or different judgment or relief as may bo just.’’

The findings below are to the effect that the defendant Richardt, having procured the conveyance from the plaintiff’s mother by fraud and undue influence and without consideration, conveyed the property to bona fide purchasers, who are entitled to hold the same as against the plaintiff, though he is not. The plaintiff could obtain no relief in the action except as heir of his deceased mother, from whom the conveyance was obtained. He could not proceed in affirmance of her deed and recover damages on account of the fraud, as such an action could be maintained only by the personal representatives of the defrauded grantor. The principle upon which the judgment rendered in this case must rest is that the deed to the defendant being void for fraud and undue influence, the title to the land, as between the plaintiff’s mother and Richardt, remained in her and descended to the plaintiff at her death.

The plaintiff had the right to call upon Richardt to restore to him the property the possession of which had been acquired under a voidable conveyance. But the fraudulent grantee by his own act in conveying the land to a purchaser in good faith and without notice has prevented the plaintiff from recovering the land ; and, under such circumstances, it is but just and equitable that he should restore to the plaintiff its equivalent in money, not as damages, but as a substitute for the land itself. The fraudulent conveyance which the defendant obtained from, the owner o[ the-land enabled him to sell it to a purchaser in good faith, and the money that he received therefor, with the interest thereon, can, for all the purposes of this case, be considered in equity as the land itself. The court could render any judgment in the case consistent with the facts stated in the complaint and embraced within the issue. Code, § 1207; Murtha v. Curley, 90 N. Y., 372.

It is a familiar principle that a court of equity, having obtained jurisdiction of the parties and the subject matter of the action, will adapt its relief to the exigencies of the case. It may order a sum of money to be paid to the plaintiff and give him a personal judgment therefor when that-form of relief becomes necessary in order to prevent a failure of justice and when it is for any reason impracticable to grant the specific -relief demanded. Murtha v. Curley, supra ; Van Rensselaer v. Van Rensselaer, 113 N. Y., 208, 214; 22 N. Y. State Rep., 947; Bell v. Merrifield, 109 N. Y., 202, 207; 14 N. Y. State Rep., 796.

Had the defendant Richardt retained the property embraced in the deed to him by Mrs. Valentine he would be required, under the findings in this case, to restore the same to the plaintiff. He conveyed it, however, to a purchaser in good faith and received its value in money. A court of equity has the power to com-pcl him to pay this money and its accumulations to the plaintiff in place of the land, and to this end a personal judgment was proper.

The judgment should be affirmed, with costs.

All concur, except Ensrcii and Gray, JJ., absent.  