
    Matilda Adams, App’lt, v. Sarah Jane Green et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    Fraud—Assignment oe mortgage.
    Ia an action by a widow over 70 years of age against her daughter to set aside an assignment of a mortgage on the ground of fraud in procuring the same, plaintiff testified that she was induced to sign the instrument on the representation of the attorney that it only conveyed an interest in the morfgage. On the other hand it appeared that the daughter had not received as much assistance as the sons; that the provision for her in her father’s will was likely to prove inoperative ; that plaintiff had expressed a wish to assign the mortgage to her, and that the assignment was read over and explained to her, and was put on record. The consideration therefor was natural love and an agreement on the part of defendant to move to another city and allow her mother to live with her, and defendant also executed an agreement that the mortgage should be reassigned to plaintiff if she survived her. Held, not sufficient to show fraud in the procurement of the assignment.
    Appeal from a judgment of this court entered in Monroe county, dismissing the plaintiff’s complaint upon the decision of the court at special term.
    On the 28th day of August, 1890, the plaintiff executed and delivered to the defendant, Sarah Jane Green, an instrument which, upon its face, purported to be an absolute assignment of a mortgage given by Herbert H. Adams and wife to William W. Adams, the husband of the plaintiff, to secure the' payment of the sum of $2,250, and at the same time defendant executed and delivered to the plaintiff, who is her mother, another instrument in writing, by the terms of which she agreed, that in case her mother survived her, such mortgage should be reassigned to plaintiff by defendant’s legal representatives.
    This action is brought to set aside such assignment, upon the ground that it was not the instrument which plaintiff intended to execute that it was her design and intention to assign an interest of $1,000 only in such .mortgage, but that by reason of the false representations and fraudulent concealment of the defendant and her attorney she was induced to execute an assignment of the entire mortgage instead of the portion thereof which she supposed she was transferring.
    The only consideration, for the transfer was natural love and affection and the request that the defendant should move from Buffalo to Rochester and allow her mother to live with her, which she did.
    The following is the opinion of the trial justice:
    Adams, J.—There are some features of this case which unexplained would naturally incline a court of equity to look.with favor upon the plaintiff’s contention
    The fact that she, a woman, upwards of seventy years of age, has parted with a valuable security which constituted pretty much all her personal estate, without receiving any pecuniary consideration therefor, and that she has thereby deprived herself of a considerable portion of the.means of support for her declining years provided by .her deceased husband, "is of itself one which requires that the court should carefully scrutinize the transaction with a view to ascertaining if any improper advantage has been taken of the plaintiff.
    With one’s sympathies thus aroused it would, perhaps, be an easy matter to infer that the defendant had taken advantage of the relation existing between her and her mother, as well as of the opportunity afforded by their living together to exert an undue influence over her, and by means thereof to obtain from the old lady a larger and more generous provision than was actually intended.
    But this is an action ex delicto. It is founded upon fraud plain and simple, and fraud which not only involved the defendant but likewise an honorable and reputable officer of this court. It will not do, therefore, to dispose of the case upon inferences merely, unless those inferences have some tangible evidence to support them. What, then, is the evidence upon which the plaintiff bases her contention ? It is simply that which she furnishes herself, and which is in brief that, with the design of assigning to her daughter an interest in the mortgage in question, she accompanied her to the office of Pierson B. Hulett, a lawyer in the city of Rochester, and a former judge of Monroe county, where she was induced to execute the assignment upon the false and fraudulent representation of Hulett that she was assigning an interest in the mortgage instead of the entire sum secured thereby. There is no direct, and but little, if any, collateral evidence in the case which tends in any degree to corroborate this statement of the plaintiff; but on the other hand, the presumption as well as the positive evidence in the case all tend to show that the plaintiff’s memory is either seriously at fault or else, and this seems most probable, from certain intimations wliich are furnished by the testimony, that other and stronger wills have so operated upon her mind as to compel her to state that which is not true, however much she may believe it true while living within the range of such influences.
    It appears from the undisputed evidence that the plaintiff's husband, subsequent to the transfer to her of the mortgage in question, departed this life leaving a last will and testament, in which he made certain bequests to each of his four sons and likewise to the defendant, his daughter; that at the time of her father’s death the defendant was living in Buffalo, and that thereafter, at the request of the plaintiff, she moved to Rochester, where the plaintiff took up her residence with her. The defendant was without means of support, and earned her living by keeping-boarders. She testifies that m August, 1890, her mother informed her early one morning that she had lain awake all night thinking that she ought to make over this mortgage to her, so that she, the defendant, would not have "to work so hard. There, is also some evidence tending to show that the boys had received more or less assistance from their father. and mother, while the defendant had received scarcely any; and that for some reason, which does not clearly appear, the provision made for the latter in her father’s will was ■ likely to prove inoperative. But whatever may "have been the moving cause, we find the parties at Judge Hulett’s office on the 28th day of August, where the assignment in question, as well as the agreement hereinbefore referred to, were drawn and executed.
    It appears by the evidence of Judge Hulett, that the plaintiff came to his office first alone, and told him that she wished to assign this mortgage to “ Jennie; ” that she thereupon went out and soon returned with her daughter, when he drew the assignment, “ read it over carefully to Mrs. Adams, told her what it was, and told her to sign it,” which she did, and thereupon acknowledged it. This statement, in all its essential features, is corroborated by defendant and a Miss Kendall, who was a clerk in the office. The agreement was then drawn up, and when executed was delivered to the plaintiff and the assignment to the defendant, and the parties thereupon left the office.
    Shortly thereafter, some question having arisen in the mind of the plaintiff as to the sufficiency of the assignment, it was submitted to Mr. Maurer, another lawyer residing in Rochester, who, as he tells us, advised the parties that the assignment had better be placed upon record. Both there and at Judge Hulett’s office the plaintiff had expressed some fear that the boys would make trouble when they heard of what she had done, and the propriety of putting the assignment upon record was discussed in that con-section. On the 3d of September the assignment was recorded, and shortly thereafter the fact did come to the knowledge of the boys, whereupon the plaintiff made an effort to procure a reassignment of the mortgage, but failing in that, brought this action.
    Thus it will be seen that the direct proof, if it is-to be credited, is so overwhelming in its contradiction of the plaintiff as to leave the court scarcely any opportunity to deliberate upon it.
    And what is there in the case which tends to weaken this evidence in any material respect? It seems to me there is .little or nothing; but that, on the contrary, there are several corroborating facts, circumstances and presumptions. In the first place, it is not a violent inference from the evidence in the case, that the plaintiff desired to assist her daughter to the full extent of this mortgage, in view of the fact that she believed she had never received as much as her brothers, and wás to be deprived of the legacy in her father’s will. Nor is it difficult to imagine to what extent the sons may be responsible for their mother’s action when it became known to them that she had transferred the mortgage, while, upon the other hand, it is very difficult for me to believe that an officer of this court, concerning whose character the case is utterly destitute of a shadow of reproach, would not only combine with the defendant to defraud and deceive her mother, but would also come upon the witness stand and commit deliberate perjury in order to uphold the fraud. '
    There is another circumstan.ee in the case which is hard to reconcile with .the plaintiff’s theory, and that is, that after perpetrating the alleged fraud upon the old lady, the defendant published the fact to the world and invited trouble, by placing her assignment upon record, whereas, had she kept it secret for a short time, it is quite probable her opportunity to become benefited thereby would have been greatly enhanced.
    It may be that the plaintiff was too generous towards her daughter, and too regardless of her own interests; but I find it impossible, upon all the evidence in the case, to resist the conclusion that the assignment correctly represents her real intention at the time she executed it.
    I am asked by the plaintiff’s counsel to regard the assignmént which the defendant executed and delivered to her mother as a defeasance, and to treat the two instruments as constituting a testamentary disposition of the mortgage, revocable at plaintiff’s pleasure.
    It is a sufficient answer to this contention that no such claim is set up in the complaint. As has already been suggested, this is an action based upon the alleged fraud of the defendantand there is no other element in it. Indeed, as is conceded by plaintiff’s counsel, in his brief, the existence of the “ defeasance ” was not known to him until after the trial had been commenced.
    As is already sufficiently indicated, the complaint must be dismissed ; but in view of the relation existing between these parties, and the fact that the defendant has been most generously dealt with by her mother, I think it is a case where the court is justified in exercising its discretionary power in regard to the matter of costs, and consequently none are allowed to either party.
    
      J. M. B. Stephens, for app’lt; Arthur E. Sutherland, for resp’ts.
   Lewis, J.

A proper disposition of this case was made by the

trial court.

Judgment should be affirmed upon the opinion of the trial j ustice.

Dwight, P. J., and Macomber, J., concur.  