
    Parmena M. W. Case, Resp’t, v. Enos Case, impleaded with Others, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    Deed—Undue influence—Duty of those occupying confidential delations—When a court of equity will grant relief.
    In a case where confidential relations exist between parties, the person obtaining the benefit must show by the clearest 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. 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.
    Appeal from a judgment entered upon the decision of the Orleans county special term setting aside a deed executed by the plaintiff to the defendant, Melville P. Wild, and also a deed from the latter to the defendant Case.
    The plaintiff is the wife of the defendant Enos Case. She 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 her brother, the defendant Wild, without consideration. Subsequently on the 22d day of January of the same year Wild executed and. delivered to the defendant Case a mortgage upon the said premises to secure the payment of $600, which the referee found was also without any consideration to support it, and the same was cancelled by the decree. On the 4th day of February, Wild executed another mortgage upon the premises, running to the plaintiff, for the sum of $900, and subsequently thereto, on the 5th day of May, 1885, Wild conveyed the premises to the defendant Case.
    The other facts, bearing upon the questions reviewed by the court, are stated in the opinion.
    The defendant, Case, appeared and answered, and the other defendants made default.
    
      Keeler & Salsbury, for app’lts ; John H. White, for resp’t.
   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.

Her 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 he 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 all 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 law 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, in order to secure relief.

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. Story’s 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 transactions 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 mischief, which may be brought about by a means secret and inaccessible to judicial scruntiny, from the dangerous influence, arising from the confidential relation of the parties.” Story’s Eq. Jur., § 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 sixty, and upwards, she is left penniless.

While the negotiations were going on, between these parties, which resulted in the making of this deed, the plaintiff was in great distress of mind, 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 consideration, was actually paid therefor.

In cases where confidential relations exist between the parties, the person obtaining the benefit must show by the clearest 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 id., 285; Boyd v. DeLa Montagnie, 73 N. Y, 498.

This the defendants have signally failed to do.

The judgment 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 sell or 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 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 premises.

Nor 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 plaintiff 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 her 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 was 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 provision 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 Fuller had 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 tbo Code. The objection was overruled and an exception taken by 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 third 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 tome; 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 az*e the identical papers; my brother gave me no money at all.” Q. “Is this the bundle here, of 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 a part 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.”

Q. “What did you count, did you count these? A. 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 bz’other had none; the papers have faded now; they were good color when I had them; but now they are not, and those are the izzdentical 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 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 cozznted; all the rest stricken out; simply that that is the package size counted; package of papers were marked exhibit 1.”

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 struck 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 ordez*ed to be stricken out, the plaintiff’s evidence, which remained, does ziot cozztain 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.

Haight, Bradley and Dwight, JJ., concur.  