Jackson ex dem. Tracy v. Hayner — 12 Johns. 469

Majority

p. 469

Jackson, ex dem. Tracy, against Hayner. The same, ex dem. the same, against Ferguson.

Headnote

where an ¡Hits-, cea to sign » deed, ;by a misrepresentation of its nature ana contents, the deed is void..

THESE were actions of ejectment, to recover a farm in the town of Laudlake, in the county of Rensselaer. The evidence . ' J i r . was taken out of court, ana a case settled by consent of the . y ' 'parties* ’ 4 ’

- Abraham Frear was the source of the title,’both of the plaintiffs and defendants, and held under a lease in fee, fróm Stephen Van Rensselaer, dated September 22d, 1790. On, the 13th of September, 1800, by an instrument, endorsed on the lease, Abraham Frear, and wife, assigned the premises to James Morrison, in fee, and the point on which the causes turned, was, that this assignment had been obtained by fraud. .The plaintiffs’ lessor claimed through Morrison, under a sale, by virtue of an execution. ■ In 1802, Abraham Frear devised the premises to his son, John Frear; and, afterwards, in 1804, conveyed part of the same to the defendant,1 Ferguson.

■ Pownal Hitchcock, the principal witness to prove the fraud, testified, . that he wrote the assignment on the lease, at the request of Samuel Frear,. a son of Abraham Frear, and at Samuel' Frear’s house. After it was written, Samuel Frear called his father out of another room, who appeared reluctant to execute it. The only persons present were Samuel Frear, and his wife, Abraham. Frear., and his wife, and James Morrison. Abraham Frear asked what the writing was; whereupon the witness proposed to read it, but Samuel Frear told him not to do so, for that the old man would not understand it, and he did not wish him to. Abraham Frear. asked Samuel, whether it would not hurt him ; to which he replied, that it was only a bargain or agreement, between him (Samuel) and Morrison, and could not hurt him. .Abraham said to his son, that he did! not like to sign it; and that he was not fit to sign any paper. After some conversation between Abraham and Samuel, the former, with his wife, executed the assignment. '

Abraham Frear was an illiterate man, not being able either to Read or write. The execution of the assignment was proved by

p. 470

Hitchcock,, before Leti Rumsey, • a judge of the Common Pleas of Rensselaer county, and also a justice of. the peace.- ■ It appears that, for the purpose of procuring the attendance of Hitch-' .cock before the judge, to prove the execution of the assignment,a fictitious suit had'been instituted' between two' persons, - of the name of Bole and Tanner, in; whichhe was subpoenaed as a witness. Hitchcock testified, that when he appeared before the jus- . -tice, he- informed him that bis'.evidence, "was’, wanted respecting' a bet. -'When Hitcñcocít'was sworn-,. th'e justice- asked: him .if he saw Jlhmham Frtar. and wife, sign the .assignment, and if he Hid. it. voluntarily; .to both of whiclj questions, he answered, yes ;, an.d: when - abbuf to mention the - circumstances attending the ' transaction,, the justice interrupted -Min; and there' the trial before the justice ■ ended; It ,appears that, upon the evidence thus taken before -him, the justice;.' as judge of thevCommon. Pleas, luadehis certificate of proof of the execution ;ó.£ -the 'assighmeht,which was dated the 25th of December, 1813. ; The witness,; 'on. .his cross-- éx'añ'iina:tio.n,..said;,. that' the conversation between Satnucl Freqr and his father,! Was -held in Bictch,.. which'language ' lie did not understand. On being asked how he understood 'that the .did ..man Was reluctant to sign the assignment,.;.he .Said;, that he understood’it by ‘his mdtibhs,-- Samuel;Ffe.ctr .talked in- Butch to the old niah, and pointed to the assignment, and the- old man shook his head, and said naenby which he understood him to mdan, that he did .not like to sign it. The witness said, that he did not -mean tp'sáy that'hé heard .old Mr. -Frear say that-he was -not-fit -to" sign any. paper; find: that at a circuit court held at Troy-, 'several years since,, in an action between Morj-ison and Ferguson, respéc-tirig the preriii-sés, he testified, substantially the "same as- he had now done./ The-trial last mentioned by the ■Witness, was, as appeared from the testimony of Abraham Fan Vtclilm, held in 18-08-,'who also confirmed what the ether witness feaid, that -the' testimony, -of Hitchcock 'was .substantially the ■ same"on this as on- the former-occasion.

v There Was apnass-of evidence detailed Ih the cáse,;whieh-tit .is Unnecessary to '-set''for th,. as all the material parts are referred -to, and stated in. -the ópiniomof the court.' ; . ■ , "

Buel, for the plaintiffs,

cited. Peake's N. P. 146. 2 Dall. 96 . 2 Johns. Rep. 404 . 4 Cruise's Dig. tit. 32. ch. 2. 2 Caines' Cases in Error, 47.

p. 471

Van Vechten, contra,

contended, that the assignment from Frear to Morrison . was fraudulent; and that Morrison was not seised at the time of sale, and that the sheriff’s deed was void. He cited Jackson v. Rumsey, 3 Johns. Cases, 236. 4 Johns. Rep. 163 . Cro. Car. 303, 304, 2 Co. 59. 1 Burr. 112. 1 Johns. Cases, 34. 1 Caines's Rep. 84. 4 Johns. Rep. 390 . 6 Johns. Rep. 197 . 213. Gilb. Ex. 42. Co. Litt. 222. 2 Cruise’s Dig. 72. s. 43. 1 Bac. Abr. Assign. 157. (A.) Co. Litt. 214. Roll. Ab. 176. Skinn. Rep. 6—26.

delivered the opinion of the court. Thq only question in these cases, is, whether the assignment from vi&raAa??¿ Frear to James Morrison, of the 13th of September, 1800, and endorsed • on the lease from Stephen Van Rensselaer to Frear, of the 22d of September, 1790, is fraudulen t and void.

If the facts stated by the "subscribing witness to this assignment, are true, there can be no doubt that a gross ,and unexampled imposition has been practised on Abraham Frear, who, it is alleged, executed it. Rovmall' Hitchcock,. the witness; alluded to, states that he wrote the assignment at the request of Samuel Frear, who, after it was written, called his father out of another room, who appeared reluctant to execute it, and.asked what it was. The witness then proposed to read it to him, which Samuel, told him not to do, that he would not understand it, and he, Samuel, did not wish him to read it; and it was hot, therefore, read to him. The old man then asked whether it would not hurt him; to which Samuel replied “no,” that .it was only a bargain between him, Samuel, an*d James Morrison ; upon which he said he did. not like to sign it j he was unfit to sign any paper. That after some conversation between them, he and his wife executed it. , In opposition to those facts it is, however, urged, that this witness is not to be believed, because he had previously appeared before Levi Ramsey, one of the judges of the court of Common Pleas, of the county of Rensselaer, to prove the. assignment, and stated differently : and because lie declares that Abraham. Frear spoke in Dutch, and that he did not understand that language; neither of these objections are true, to that extent, as can invalidate his testimony. ■

The information he gave to the judge, as.far as he went,'when he appeared before him, is not materially variant from what he relates now ; and, aceordingto Mr. Van Vechten? s evidence, it is-

p. 472

the samé with what he testified onthe. tfia’l of the ejectment for the same premises, in 1808. The witness says, he stated to! Judge Rumsey, that Ahmham.Frear signed it voluntarily, andthat when pe was, about to reíate the transaction more particularly, the judge - interrupted him. - That he'Intended to'prbceed with his relationis probable, because it appears he had, on a former trial, given evidence, specihily- stating the circumstances' which: took place when: the assignment was executed, and Judge Rumsey. himself, in. his evidence,,does not cXprbssly deny' the'fact mentioned'by hioly as having occasioned the interruption,, but, generally -states, . that ■Hitchcock was 'examined by'him, on oath, in the usual form of the examination of .witnesses to prove deeds, i arid that he 'ex- " amined him as fully as- is usual, to all the circumstances required "by 'law'■ -that the evidenceis'..s ta ted' correctly, bfit not' verbally' in the certificate. All this may be true, and yet if the witness had (as he intended,) related the whole of the circumstances, it would, have gi.veh á different .aspect to the transaction, from,' what now appears by the certificate of proof, endorsed on the assign-, meut. The unusual and extraordinary- method resorted to, by instituting a' fictitious suit to. enforce the attendance : of bsubscribing witness to prove a deed, is, in my view, highly improper '; particularly wheté' the justice of the peace, and judg.e, (for júdgé Rurnséy acted in both capacities,) did not know; as he déclares; at. whose instance, or for whose benefit, such fictitious. suit was instituted. It was certainly exercising the powers of a justice of the peace for a purpose different from what the statute,, giving, to" justices jurisdiction:óf causes to be tried before them, ever contemplated! In Jackson v. Schoonmaker, ( 4 Johns. Rep. 163 .) we have said that -the acknowledgment and proofófdeed.s' is merely for the purposeof recording them, arid- is not conclusive oil the opposite party";, such proof being '-.ear-ptíríe, ánd that .the -party who is to tie affected by the deed can, at- any time, qües-tiph its validity. -Perhaps few cases could be presented, showing the'propriety ofifii'is decision''mófe- conspicuously' thán-the :■ present; for if a contrary principle had prevailed, and this, in-" ye.stigation -had not been- permitted, it. is -evident, that the truth,.' as to the execution Of-'this instrument,! cOuld never have been brought forward in a court of law, , > •. <> • .

., The -plaintiffs?, own witnesses show- that- James Morñson- and Samuel Freár were men' -of bad reputation. Frederick Carpenter says, • that-:-'8#ÍMPÍ Frew '.'was'.- a pogbe.?. and- James. Hole

p. 473

says Morrison was a man of bad character before he .left the Beaver Dam. Whát brought him, after that period, to the state prison, does not appear. At any rate, they appear to be men peculiarly fitted for a transaction like the one before us, and of which they are charged to- be guilty through interested motives. The confession of Samuel Frear to Co/e, shows his object, and the difference in the value of the farms was evidently the advantage Morrison expected to derive from it, Samuel Frear mentioned to Cole that he knew the Greenbush farm was worth considerably the most, but that he got the lease assigned to Morrison to prevent his brother, John Frear, from having the farm, as the old man had devised, his property to John. In this he was not mistaken, for it appears to have béen, the intention of the old man to do so, both before and after this transaction, as he did eventually give his estate to his son John, by his last will and testament.

The fact that Samuel Frear went into possession of the Beaver Dam farm, in the fall of 1800, does not operate in favour of the Validity of the assignment. It would' have been otherwise, if Abraham Frear, the father, had taken possession of that farm; but the entry and possession, by Samuel, was no more than what might be expected he would do, without delay,, to consummate the intended fraud. The old gentleman never went into possession, but continued on his farm at Greenbush ; so that the possession taken by Samuel rather militated against the legitimacy of the assignment; particularly, as the father did not accompany the son when he took possession; and according to the alleged declaration of the father, to one of the witnesses, his son, Samuel, was to maintain him after the exchange of farms.

■ The circumstance; of the assignment’s being endorsed on the lease will not strengthen it; because Abraham Frear was fgnq.rant and illiterate, and must have supposed that he and his wife subscribed as witnesses to the agreement, which Samuel told him he had made with Morrison ; and although it must be "admitted that his being ignorant and illiterate will not avoid the deed, if even it was riot read to him; yet, where the deed is requested to be read, and it is not done, that is sufficient to avoid it. (Hullenback v. Dewitt, 2 Johns. Rep. 404 .) In this case, the conduct and conversation of Abraham Frear, when he came into the room, amounted to a request to have it read to him. He asked what it was, and whether it would not hurt him to sign it;

p. 474

'imd. when Ditchcóck, who drew it, proposed to read: it,. Samuel interposed, by misrepresenting the nature- of the instrument he was to sign, - ’ ' ' , .

The operation-, of this, instrument on the right of Jbraham Frear, is alone sufficient to stamp it with fraud, because, by it, he parted; with the farm at Cr reenbush /_ and the Beaver Dam farm, ¿s appears in evidence, was: conveyed by Morris on to hi§ tW.o sons, Samuel and Frederick, without any obligation from.them to him. This certainly tyas ne ver "intended, even, according-to the recognitions'and confessions-óf the father, alleged to have been made to Frederick Carpenter,' a witness relied on by the ..plaintiffs91 .counsel. That witness ¡says,, the bid man .declared, at the time, that Samuel was to maintain him; yet; no . security for such, maintenance was given,, and he parted with his property without it. This, of itself, renders -the .whole, .merer di'ble. ' . ■

If appears to me, that this transaction has continued through-' out enveloped in the same darkness and toys Ce-ry .with which the business commenced, when, according to ColS’s testimony, Samuel Frear and. James Morrison first went t-.o view the Beav.er. Damfarm in' the night,.' and slept in the haystack. .

It.is always dangerous to rely on the loose declarations-of a party, to " prove, a conveyance of real - estate; particularly" when >t:he ¡testimony of the subscribing witness is attended: with corroborating circumstances, showing the probability- of Lhis speaking the truth, . The evidence of the witness ought to outweigh any paroi proof, as' to subsequent .verbal-^ recognition^: -on the subject," unaccompanied by the acts of the party, also -showing it,'. In-, this instance,;.no; such, act appears ;■ for it-is evident that Abraham Frear never took possession, of the Beaver Dam 'farm, which was not even assigned to him.;-it therefore cannot .reasonably be. supposed ’t-hat’he intended -to- part with 'this, property, vyilhout .any advantage, to "himself; not even security for Ms maintenance from Samuel, which;: ¡according,to an. alleged confession i® one of the witnesses, made by him,«as before stated, was part of the arrangement in. making the-exchange., We arfe, accordingly, of opinion, that the" assignment etidorSed.'on the .lease from Stephen Van Rensselaer to Abraham Frear,-. is fraudulent and void, and that judgment be entered in both-these caii'ses for the" defendants-. • - - - -

Judgment for the defendants.

Cases cited

Lesher's Lessee v. Levan 2 Dall. 96 SCOTUS p. 470