Hallenbeck v. Dewitt — 2 Johns. 404

Majority

p. 403

M. Hallenbeck and wife against Dewitt.

Headnote

Proof that the grantor of a deed was ve- and Imterate, and could not, and that the dee^fWv not not sufficient deedj unless*2' he requested to him,

This was an action of covenant. The declaration was. on a covenant by the defendant, as lessee, on a lease ma(le between him and one Jacob Hallenbeck, now deceased, who bad, before his death, conveyed the rever-&'ion of the demised premises to the wife of Hallenbeck, one the plaintiffs. The defendant pleaded the general issue, and gave notice that he should prove, that üe. hRd Paid the rent, to Jacob Hallenbeck in his life-time, anct since his death, to his executors, before any notice ofthe conveyance to Mrs. Hallenbeck, one of the plaintiffs.

On the 14th of June, 1802, Jacob Hallenbeck executed a deed of the rent and reversion ofthe demised premises, in fee to Mary, wife of M. Hallenbeck, the plaintiff. The deed was witnessed by two witnesses, and acknowledged

p. 404

and proved before a master in chancery. Jacob Hallen beck died in September, 1802, leaving a widow and a posthumous child.

The defendant offered evidence to show, that the deed to Mary, the wife of M. Hollenbeck, was obtained by fraud and imposition.. He produced several witnesses, who testified, that Jacob Hollenbeck was a very ignorant and illiterate man, and could -not read writing, though he could write his own name, and was hardly capable of transacting his own business. The subscribing witnesses to the deed both testified, that they saw the grantor Execute it, but that it was not read to him. The cause was tried at the Green Circuit, before Mr. Justice Thompson. The jury found a verdict for the defendant, contrary to the charge of the judge.

A motion was made for a new trial, and argued at the last term by Kirtland and Van Vechten for the plaintiff, and Frazer for the defendant.

delivered the opinion of the court. The. defendant obtained a verdict in this case against the charge ofthe judge who presided at the trial, and it is now a question, whether that verdict is supported by the evidence.

The defendant relies on two considerations to retain the verdict : 1. That Jacob N. Hollenbeck (under whose deed the rent and reversion of the lands leased to the defendant, áre claimed as having passed to the plaintiff’s wife) was illiterate, and the deed was not read to him before execution : 2. That there was fraud in obtaining it. There is no proof that the deed was read, and it is certain that the grantor was a very illiterate man; but the circumstance that the deed was not read, is of no weight, unless it also appear to have been required, and of this there is no evidence; on the contrary, there can be no doubt but that the grantor was fully apprized of the nature and' contents of the deed. I see no evidence

p. 405

in the case authorizing any belief that there was fraud in obtaining the deed ; and consequently, the verdict is against both the evidence and law of the case. I put out of view the subsequent marriage of the grantor and birth of a child ; in the case of a revocable instrument these might be, and are weighty circumstances to infer an alteration of intention. We are of opinion, that there must be a new trial on payment of costs.^[1]

New trial granted.

(a) (a) .) Where an illiterate man is induced to sign a deed hy misrepre-sontation of its nature and contents after a refusal of a request to have. ** reac* to die deed is void, Jackson v. Hayner, 12 Johns. 469 . See Whelan v. Whelan, 3 Cowen. 537, in Courtof Error.