
    Michael McNally, Respondent, v. Mary E. Fitzsimons, as Administratrix, etc., of Ann Cassidy, Deceased, and Others, Defendants, Impleaded with Mary E. Fitzsimons, Individually, and Others, Appellants.
    
      Partition of real pi'operty, between the committee of a lunatic and his cotenants, induced by the fraud of the latter — set aside at the suit of his heirs — sufficiency of the complaint in such an action as to an offer and ability to restore.
    
    Where a lunatic and his uncle and aunt are cotenants of a number of parcels of real estate, and the committee of the lunatic, who has no knowledge in respect to the condition of the real estate, at the suggestion of the uncle and aunt, obtains leave of the court to join in a voluntary partition of such real estate, the uncle and aunt, in their dealings with the committee of the lunatic, are bound to exercise the utmost good faith.
    Where the uncle and aunt, by means of false representations and fraudulent concealment in respect to the condition of the real estate, induce the committee of the lunatic to accept as the lunatic’s share of the real estate, property, the title to which is in dispute and the value-of which is much less than the value of the property set apart for the uncle and aunt, the lunatic’s heirs may, after his death, maintain an action to set aside the partition.
    Where the complaint in such an action alleges in one portion thereof that deeds of the property set apart to the lunatic were executed, and in another portion thereof alleges that such deeds were never delivered, but does not contain an offer or an allegation of ability to restore whatever the lunatic had received under the agreement, the court will, for the purpose of sustaining the complaint against a demurrer, assume that the execution of the deeds to the lunatic was not completed by delivery.
    
      Semble, that if it should appear upon the trial that the deeds had been delivered, the complaint would have to be dismissed because of its failure to contain an ■ offer and an allegation of ability to restore.
    Appeal by the defendants, Mary E. Fitzsimons, individually, and others, from so much of an interlocutory judgment of the Supreme Court in- favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of November, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, as overrules said defendants’ demurrer to the complaint.
    
      Charles E. Miller, for the appellants.
    
      I. Newton Williams, for the respondent.
   Van Brunt, P. J.:

I concur in the conclusion arrived at by the court below, but I do not concur in that portion of the opinion in which the learned judge states that in effect the complaint contains an offer to restore' what John P. McNally received.

This action is undoubtedly brought for the purpose of rescinding an executed, or partly completed, partition between certain tenants in common of real estate. In consequence of the fact that the drawer of the complaint did not seem to comprehend what was necessary to the execution of a deed, we are left in doubt from the allegations of the complaint as to whether or not any deeds were executed to the deceased John P. McNally. The pleader seems to be ignorant of the fact that for the due execution of a deed, delivery^ as well as the other requisites, is necessary. If the deeds of the property alleged to have been assigned to the deceased John P. McNally were executed, then it is clear that the complaint in this action is ■clefective in not containing an offer to restore, and alleging an ability to restore. (Brewster v. Wooster, 131 N. Y. 473, 477, and cases cited; ■ Cox v. Stokes, 156 id. 491, 506.) The complaint contains allegations that the deeds to McNally were executed, and it also contains allegations that they were not executed. It says in ’ paragraph 9 of the complaint that the other tenants in common released to said John P. McNally the premises which were assigned to him; in paragraph 11 it speaks of the deed of a part of the premises which were assigned to John P.' McNally in the partition as being made and executed, and in paragraph 12, speaking of the ■defendant Mary E. Fitzsimons, it alleges that she executed and caused or procured others to execute said deed to John P. McNally, and then in paragraph 14 it alleges upon information and belief that the deeds, executed to said McNally in release, or pretended release, were never delivered to said McNally or to said Harrigan as his committee, or to' any other .person on his behalf. But in view of the rule that a pleading is to be most favorably construed in the case of a demurrer where there are inconsistent allegations, I suppose that we are to take the allegation which will support the cause of action, rather than the one which is fatal to it. Assuming, therefore, that the deeds in question were never executed because of non-delivery to the lunatic, or his committee, or to any other person on his behalf, there was no necessity of an allegation of an offer to restore. But if it should turn out upon the trial that these deeds had been executed by delivery, then, clearly, the bill would have to be dismissed because it did not contain any offer to restore, which, under well-settled principles of law, is absolutely necessary in the case of rescission, except under circumstances which are not applicable to the case at bar.

Upon the main question, it seems to us that in view of the fact that the cotenants were dealing with the committee of a lunatic who had no knowledge in respect to the condition of the real estate, they were bound to the utmost good faith. The relations of the parties would have been entirely different had they not been dealing with a lunatic whose committee could not be supposed to be familiar with the condition of the property to be partitioned, and who, as is alleged, relied upon the representations made by the cotenants of the lunatic that the partition was fair and equitable. The ordinary rule of crneat emptor cannot be held to apply to parties situated as were those who took part in this partition.

We think, therefore, upon the whole, that the judgment should be affirmed, with costs, with leave to the defendants to withdraw their demurrer and answer upon payment of costs in the court below and of this appeal.

Ingraham, McLaughlin and Hatch, JJ., concurred; Laughlin, J., concurred in result.

!

Laughlin, J. (concurring):

This action is brought to set aside a voluntary partition of real estate made by heirs of Ann Cassidy, deceased, on the ground of fraud. These heirs were John P. McNally, Mary E. Fitzsimons and Peter A. Cassidy.

It is alleged in the complaint that the plaintiff , is the father and sole heir of John P. McNally, who died on the 18th day of July, 1900, at Newark, N. J.; that for ten years prior to his death he was of unsound mind and confined in an insane asylum in the State of New Jersey; that on the 25th day of March, 1898, one William Harrigan ivas duly appointed guardian of his person and property by the Orphans’ Court of Essex county, N. J.; that said Harrigan was thereafter and on the 22d day of April, 1898, also duly appointed the committee of the person and property of said McNally by the Supreme Court of this State; that said Harrigan qualified as such committee and continued to act as such until On or about the 1st-day of January, 1899; that, said Harrigan, neither as guardian or as such committee, lias ever received or held any money or property of said McNally; that, soon after the appointment . of said Harrigan as such committee, the said Peter A. Cassidy and Mary E. Fitzsimons represented to him that the -Only real estate left by said Ann Cassidy consisted of a house and lot known as .No. 208 East Fifty-first street,, a house and lot known as No. 113 Avenue D, four houses erected on two lots, known as. Nos. 593 and 595 Second avenue, a moiety of two houses and' lots known as Nos'. 324 and 326 Cherry street, and proposed and suggested that he petition the Supreme Court for leave to make a partition of said real estate, and as a fair and equitable partition they. proposed that they release to McNally the premises No. 208 East Fifty-first street and No. 113 Avenue D, and that he release to them as tenants in common the remaining premises; that they represented to him that this would be a fair and equitable partition of said property-; that, acting upon such representations, said Harrigan, as such committee, petitioned the Supreme Court and such proceedings were had in said court that a partition of said property was made, as so proposed by said Cassidy and Fitzsimons, pursuant to' an order or judgment of said court made in said proceedings, and the premises Nos. 208 East Fifty-first street and 113 Avenue D were by said Fitzsimons and by the heirs of said Cassidy, who in the meantime had died, released to said McNally and the other property was by said Harrigan, as such committee, released to said Cassidy before his death and to' said Fitzsimons; that, in making such partition, said Harrigan relied solely on the representations ■of said Cassidy and Fitzsimons, or their duly authorized agents or .attorneys, to him as such- committee and to the plaintiff, that said. . partition was fair, honest and equitable to said McNally, which statements and representations'said Harrigan, as such committee, and the plaintiff relied on and believed to be true, especially as said Fitzsimons and Cassidy were the aunt and uncle respectively of said McNally and professed at that' time to be deeply interested in his welfare; that said representations were false and untrue and were well known by said Cassidy and Fitzsimons to be false and untrue at the time they were made; that their falsity and untruthfulness were not discovered by said Harrigan, or by the plaintiff, until about the month of August, 1900; that neither said McNally nor said Harrigan, as his committee, would have been a party to said partition as made and consummated by the judgment of said court had they not believed said representations; that said partition was not fair or equitable and just in that the property set apart to Fitzsimons was worth a sum largely in excess of $8,,000 more than that set apart to said McNally; that the building on premises No. 113 Avenue D had been reported or surveyed as an unsafe and dangerous building by the building department of the city of New York to the knowledge of said Cassidy and Fitzsimons and they knew that the entire southerly gable wall of said building was unsafe and dangerous, and by the order of said building department had to be torn down and rebuilt or otherwise made safe, but that they fraudulently concealed these facts from the said Harrigan, as committee, and the court in said partition proceedings; that on or about the 1st day of August, 1900, the plaintiff first learned that at the time of the rendition of the judgment of the Supreme Court and of the making of the deed of premises 208 East Fifty-first street, so made and executed to said McNally, the title to said property was in dispute and that one Theresa G. Graham ■claimed to be the lawful owner thereof by virtue of a deed from said Ann Cassidy; that an action was subsequently commenced by said Graham against the plaintiff and others to recover said property, which action is now pending in the United States District Court for the southern district of New York; that said Cassidy and Fitzsimons were fully aware, while said proceedings were pending, of the claim of said Graham to be the owner of said property, but they wrongfully and fraudulently concealed said fact from said committee, the plaintiff and the court; that the deed to said McNally of the property set aside to him in said partition proceedings did not convey all the right, title and interest of said Deter A. Cassidy therein; that the deeds and releases to said .McNally “ in release or pretended release of the said real estate to •him ” were not delivered to him or to his committee or to any other "person in his behalf and for that reason were void; that the said Cassidy and Fitzsimons, without the knowledge, consent or approval of said committee, agreed to pay the attorneys who represented him a large amount of money if said partition proceedings went through, and did pay to said attorneys at least the' sum of $2,500 for putting through said partition proceedings, which sum was grossly, in excess of the reasonable value of the services of said attorneys, “ so that said attorneys did not truly' represent said committee but repre^ sented the said Cassidy and the defendant Mary E. Fitzsimons; ” that all the consents both verbal and in writing and all acquiescence made by (the plaintiff) or the said "William Harrigan individually or as such committee of John P. McNally, to the settlement of the said estate ” were all induced and brought about by the false and fraudulent representations and wrongful acts and misconduct of the said Peter A. Cassidy and the defendant Mary E. Fitzsimons; and that by reason of the said fraud and deceit practiced by said Fitzsimons and Cassidy the said McNally was wrongfully and unlawfully deprived of property of the value of at least $8,000, and if the said Graham’s claim is valid, of the value of at least $20,000, for which plaintiff has no adequate remedy at law. The complaint demands judgment that the. said partition of the real estate be declared null and void ; that any and all proceedings, orders or judgments made therein be vacated and set aside, and that all deeds made in accordance with said order or judgment may be declared null and void and ordered to be canceled of record; that the plaintiff be adjudged to be the owner in fee of an undivided one-third part of the real estate of which said Ann Cassidy died seized, and that the parties to this action account for all rents received by them respectively from said property and for such, other or further relief as to the court may seem just and equitable-together with costs and disbursements to be paid by the defendants.

The plaintiff, as the sole heir of said McNally, may maintain this action. (Prentice v. Achorn, 2 Paige, 30 ; Code Civ. Proc. § 1909.) On demurrer a pleading is not to be construed strictly against the pleader. It is deemed that the demurrer admits not. only every fact specifically alleged, but also every fact that may' be inferred or implied therefrom by reasonable and fair intendment. (Coatsworth. v. Lehigh Valley R. Co., 156 N. Y. 451; Rochester R. Co. v. Robinson, 133 id. 242 ; Hewlett v. Brooklyn Heights R. R. Co., 63 App. Div. 423; Waite v. Aborn, 60 id. 521, 524.)

It was said by the court in Foote v. Ffoulke (55 App. Div. 617, 618) that “ where different inferences can be drawn, the one which will support rather than one which will destroy the action or remedy sought should be adopted.” If the allegations of a complaint are indefinite the remedy is by motion to make them more certain and definite. Where the allegations are inconsistent the remedy is before answer to compel an election. (Sarasohn v. Miles, 52 App. Div. 628; affd., 169 N. Y. 573; Tuthill v. Skidmore, 124 id. 148; Eison v. North River Electric Light Co., 34 Misc. Rep. 191.) Tested by these rules, or even by the somewhat inconsistent rules that with reference to matters of substance an ambiguous pleading or one of doubtful meaning must be construed most strongly against the pleader (Clark v. Dillon, 97 N. Y. 370; Bogardus v. N. Y. Life Ins. Co., 101 id. 328, 337; National City Bank v. Westcott, 118 id. 468, 474; Browne v. Empire Type Setting Machine Co., 44 App. Div. 598 ; Hammel v. Washburn, 49 id. 119), I think the complaint sufficiently states a cause of action for the relief demanded.

It is urged that the plaintiff should have offered to restore what he has received. According to one of the allegations of the complaint he has received nothing, for the releases or deeds have not been delivered. It does not appear whether the releases or deeds have been recorded. But, assuming that they have been delivered and recorded, plaintiff asks to have the proceedings of the court and the deeds all canceled and each party account for the rents and profits received. This will restore all parties to their position prior to the partition and is, I think, a sufficient offer to restore and may be consummated at the trial or properly disposed of by the decree. (Allerton v. Allerton, 50 N. Y. 670; Powell v. Linde Co., 49 App. Div. 286.) This being a suit in equity the. plaintiff’s failure to tender restoration before suit brought and demand restoration by defendants, is no bar to the action, but may affect the allowance of costs. Inasmuch, however, as some of the parties are infants a suit was unavoidable. It is not very definitely alleged in the complaint just what proceedings were had in court, but the fair inference is that they were proceedings under sections 1590 to 1593 of the Code of Civil Procedure, which authorize a voluntary partition of real estate in cases of lunacy and provide that the releases shall have the same effect as deeds would were the lunatic competent.

I doubt whether the action could be maintained merely upon the claim of Theresa G. Graham. Although an heir is not a purchaser from his ancestor within the protection of the recording acts, I think that when heirs who have come into the inheritance, as manifestly these heirs did, voluntarily partition the real estate upon the faith of the record title, that each becomes a purchaser from the other and is protected against an outstanding unrecorded deed of which he had no knowledge where the grantee was not in possession. (Real Prop. Law [Laws of 1896, chap. 547], §§ 240, 241; Oliphant v. Burns, 146 N. Y. 218, 233 ; Tefft v. Munson, 57 id. 97; Strough v. Wilder, 119 id. 530; Westbrook v. Gleason, 89 id. 641.) But the allegations of fraud and deception by which an inequitable partition of the. real estate was procured to the great damage of the plaintiff’s incompetent ancestor are sufficient, if established, to warrant the relief for which the action is brought.

It follows that the judgment should be affirmed, with costs.

McLaughlin and Hatch, JJ., concurred in result.

Judgment affirmed, with costs, with leave to defendants to withdraw demurrer and answer on payment of costs in this court and in the court below.  