
    Robert J. Smith and Thomas H. Smith, Resp’ts, v. Margaret Smith, App’lt.
    
      (City Court of Brooklyn,
    
    
      General Term,
    
    
      Filed November 24, 1890.)
    
    Deed—Oastceldatioft of, for fraud.
    Plaintiffs, who were tenants in common with defendant, who took charge of the property, conveyed their interest in it to her on the representation that the instrument was only_ a power to collect rents, and without reading it, relying on the professional knowledge of the attorney for defendant and her affection for them. Held, that their negligence in not advising with an attorney before executing the paper was no defense to an action to cancel the instrument.
    Appeal from judgment of special term, decreeing the annulment of a conveyance by the plaintiffs to the defendant.
    
      Johnston & Johnston, for app’lt; Horace Graves, for resp’ts.
   Clement, Ch. J.

In the year 1875 one Ann McCool died intestate seized of real estate in this city, leaving as her heirs two sisters, Hannah Smith and Margaret Smith, the defendant, and a brother, Anthony Phillips. In 1876 said Hannah Smith died intestate and her only heirs were two sons, the plaintiffs, and one daughter. It is claimed that Anthony Phillips was an alien and never resided in the United States, and took no interest in the real estate, but that question is immaterial in this case. The defendant seems to have taken charge of the real property left by Ann McCool, which produced rents sufficient only to pay interest, repairs and taxes. On or about April 24, 1880, the plaintiffs and their wives conveyed by deed to the defendant their interest in such real property, and this action was brought to cancel such deed, on the ground that the same was obtained by fraudulent representations by the defendant and her attorney. The learned trial judge found that the deed was obtained on the representation that it was an instrument which gave the defendant only the power to collect the rents, and that the plaintiffs did not read the paper, relying on the professional knowledge of the attorney of the defendant, and on her affection and good will as their aunt

There was a conflict in the testimony, and the findings at special term are not against the weight of evidence, and the only question in the case seems to be as to the conclusions of law drawn from the facts as found. Many authorities of other states have been cited by the counsel for the appellant It is not necessary to review such authorities in view of the case óf The Albany City Savings Institution v. Burdick, 87 N. Y., 40, which seems directly in point and upholds the law as held at the trial. Judge Earl, in that case, says, page 49 : It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded when he demands relief, that he ought not to have believed or trusted him. Where one sues another for negligence, his own negligence contributing to the injury will constitute a defense to the action; but where one sues another for a positive willful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief.” In the case before us the plaintiffs were negligent in not advising with an attorney before they executed the paper which they ask now to cancel, but they saw fit to rely on the statement of the attorney for the defendant, with whom they were acquainted. On the facts of this case it is clear that the deed should be canceled.

We have considered the exceptions in the case and find no error.

Judgment affirmed, with costs.

Osborne, J., concurs.  