
    Harley M. Butler, Plaintiff, v. Estella M. Butler, Ernest C. Verwiebe, William M. Miller and Ada M. Miller, Defendants.
    (Supreme Court, Schenectady Trial Term,
    January, 1916.)
    Marriage—when void — deeds — husband and wife — when deeds may be reformed — lien for money loaned.
    Where a woman for the purpose of inducing a man to marry her falsely stated that her husband had been absent continuously fo.r five years, that she did not know where he was or whether he was alive or not, the marriage entered into in reliance thereon and in the belief that such statements were true is absolutely void as to the. man and he is entitled to have set aside a deed of a house and lot from himself to a third person and one from the latter to plaintiff; and the • woman, as husband and wife, and also to have reformed two other deeds of real estate conveyed to him and her as husband and wife by striking out the words “ Estella M. Butler, as husband and wife,” and making other corresponding changes, on the ground that the marriage between him and her and said deeds were induced and procured by her fraud and deceit, and said deeds may be reformed without making the grantor therein a party to the action, he having no interest in the property and no fraud being charged against him.
    The woman, however, is entitled to a lien on the property for the amount of money loaned by her to plaintiff.
    Action to set aside deeds.
    
      Stuart G. Knight, for plaintiff.
    Walter F. Wellman, for defendants.
   Whitmyer, J.

Plaintiff is seeking to set aside two deeds of a house and lot, one from himself to defendant, Ernest G. Verwiehe, dated June 6, 1914, the other from said Verwiehe to plaintiff and to defendant, Estella M. Butler, as husband and wife, dated June 8, 1914, and is seeking also to reform two other deeds of two lots conveyed by Levi S. Benedict to plaintiff and to Estella, as husband and wife, one dated June 6, 1914, and the other July 10, 1914, by striking out the words ‘ ‘ and Estella M. Butler, as husband and wife,” and making other corresponding changes, on the ground that the marriage between himself and Estella and that the said deeds were induced and procured by her fraud and deceit. Plaintiff has lived in or near the city of Schenectady nearly all of his life. He met Estella in December, 1913, while visiting his brother in a suburb of the city of Boston. She and his brother were boarding at the same boarding house. She was known as Mrs. Estella Hammond. She told plaintiff that she had been married, but that her husband had been absent continuously for five years; that she did not know where he was and whether or not he was alive, and that she had tried to locate him but had been unable so to do. Plaintiff proposed marriage. They came to the city of Schenectady and consulted an attorney, defendant Miller. Plaintiff asked him how long a former husband would have to be missing before the wife could marry. The evidence does not show just what Miller said, but plaintiff applied for a marriage license. At the city clerk’s office he was told that an affidavit to the effect that the wife had not seen or heard from her husband for five years was necessary. The affidavit was prepared by Miller. It was to the effect that Estella had married Josiah-Hammond on September 23, 1905, and had lived with him until November 13, 1907, when he abandoned her, and that he had been absent for five successive years without being known to her to be alive. She swore to it before Miller on February 5,1914. A license was then procured and a marriage ceremony was performed on February 14, 1914. Hammond, the husband, testified at the trial. Plaintiff located him in Lynn, Mass., with the aid of one of Estella’s uncles. He testified that he lived with her until August 27, 1912, and that he did not see her after that until the trial. She testified that he left her in November, 1909, and that she did not know until the trial whether he was alive or not. However, the circumstances show that Hammond told the truth and that she did know. The marriage to plaintiff was, therefore, absolutely void (Dom. Rela. Law, art. 2, § 6; Stein v. Dunne, 119 App. Div. 1; affd., 190 N. Y. 524), and plaintiff was an innocent party. Estella made false statements to him for the purpose of inducing him to marry her and he married her relying upon them and believing them to be true. The marriage was brought about by her fraud and deceit. Estella was injured in April, 1914, while on a oar of the Schenectady Railway Company and the company paid her $550 in settlement. She and plaintiff signed the release. Shortly thereafter she loaned plaintiff some of the money. She claims that he asked for it so that he might start a building on one of his lots and get it along far enough to procure a mortgage loan, and that she loaned him $350. He claims that he did not tell her why he wanted the money, and that she loaned him $237. On May 29, 1914, Miller wrote, and asked him to adjust the loan on or before June 2, 1914, stating that Estella had stated that he would not give her any security. He called a day or two later. Miller testified that plaintiff admitted that he owed Estella about $300 and said that he could not give her a mortgage because he was trying to place one, but that he would give her a one-half interest in the property. And he claims that he then suggested a- tenancy by the entirety, but that plaintiff did not permit him to draw the deeds because he thought that his charge was excessive. Plaintiff testified that Miller “ spoke about making over the property,” but he did not give the conversation. He conveyed the house and lot to Verwiebe on June 6, 1914, and Verweibe conveyed to him and to Estella, as husband and wife, on June 8, 1914. And Benedict conveyed the lots to them in the same way, one on June 6, 1914, and the other on July 10, 1914. The deeds indicate that it was the intention to create a tenancy by the entirety, but the parties could not take and hold in that tenancy, because they were not husband and wife. If there had been no fraud and deceit, a tenancy in common would have been the result. Stelz v. Shreck, 128 N. Y. 263; Perrin v. Harrington, 146 App. Div. 292. And, so far as the matter of security is concerned, although talked about, it seems clear that plaintiff would not have given deeds if he had not supposed that he was Estella’s husband. The deeds of the house and lot should, therefore, be set aside and the deeds of the lots should be reformed as requested. It is claimed that the Benedict deeds cannot be reformed, because Benedict has not been made a party to the action. But he has no interest in the property, he is not charged with fraud, and there was no fraud as against him. The fraud was by Estella upon plaintiff; but for that her name would not have appeared in the deeds. This being so, they may be reformed without making Benedict a party. Gebel v. Weiss, 44 N. J. Eq. 521; 8 All. Rep. 899. The case cited is precisely in point. The deed there was to Peter Weiss and Kunigunda,- his wife.” The consideration was $2,040. Of this the wife paid $440 in cash from her own money and both signed a mortgage for the balance. She had three children by Weisis. After his death, learning he had a wife living, she brought action against the wife and her children to establish her title to the whole property. The grantor named in the deed was not made a party. And it was held that she was entitled to the decree asked for, because she had paid all of the consideration and because of the fraud of Weiss in marrying her and in inducing her to believe that he was her lawful husband, but for which belief his name would not have been inserted in the deed. The parties lived together, after the deeds, were given, until some time in September, when plaintiff received information that Hammond was alive. They had a quarrel and plaintiff struck Estella. He was arrested, convicted and sentenced to the county jail for sixty days, but was released by Estella’s efforts after serving twenty days. After his release he started out to find Hammond. He located him in the city of Lynn, Mass., with the aid of Estella’s relatives, and procured an affidavit from him. This was verified November 10, 1914, and was to the effect that he had lived with Estella until August 27, 1914, and that their marriage was in force. Plaintiff returned to Schenectady and commenced an action for annulment on November 11, 1914. McNab was his attorney. He showed Hammond’s affidavit to Miller, who had been acting for Estella. The attorneys discussed the case. Estella did not appear', but gave Miller a quit-claim deed on November 16, 1914, of her interest in the house and lot and in one of the lots for his services. It seems clear, therefore, that Miller had knowledge or notice of the situation. At any rate the situation was such as to put him upon inquiry. Anderson v. Blood, 152 N. Y. 285. Estella claims that she loaned plaintiff $350. He says $237, although he admitted to Miller that the amount was about $300. He testified that he used $30 of it to pay a dressmaking bill contracted by her before marriage, $53 to pay for money borrowed by her before marriage, and $24 for filling her teeth. And he testified further that he turned over the furniture and household utensils for what he owed when they separated. She denied these statements and a letter written by him in September, 1914, while he was in jail, indicates that the bill for filling teeth had not been paid at that time. The evidence is insufficient to show that he made the payments claimed. Moreover, the furniture had been bought on the instalment plan and was taken by the dealer because of his default in payment, and the household utensils, apparently, were turned over to his mother for their board. And one of his letters, written while he was in jail and after he knew that Hammond was alive, indicates that he at that time wanted Estella to have at least $200 and more, if possible. The money received from the railroad company was her money. She loaned some of it to plaintiff. The exact amount is somewhat uncertain, but it .was- at least the sum of $237, and she ought to have a lien for that amount.

Findings accordingly, with a direction for costs as against Estella, to be taxed as in an action at law.

Judgment accordingly.  