Carpenter v. Soule

much of the mortgage debt to the plaintiff, and extinguishing to that extent his liability. The evidence in the case was sufficient to sustain these findings. To some extent it furnished room for debate. The relative ages and situation of the parties, the circumstances attending the transaction, the health and capacity of the father, the drawing of the receipt by the alleged donee, and the directions given and purposes declared, were all before the trial court, were duly considered, and the inferences of fact drawn cannot be here reviewed. Even if, as is now claimed, the gift was presumptively fraudulent, by reason of the bare relation of parent and child, the finding of the trial court shows that the presumption was met and overcome. The question was raised, and raised only on the motion for a nonsuit. The defendant moved upon the ground that the transaction being between two persons occupying the confidential relations of father and son, and considering the age and infirm health of the father, sufficient evidence had not been given to show that the gift was obtained without any undue influence, or that it was a voluntary act. The court acceded to the law involved in this proposition; held that the contract was to be regarded with suspicion, and not to be upheld unless accompanied by evidence showing its fairness; but then decided that such evidence had been given, that there was no influence shown to have been exercised in procuring the gift, and the transaction as detailed showed entire fairness and satisfied the law in that respect. The defendant, therefore, had upon the trial the full benefit of the presumption which he now presses upon us, and a greater advantage than was strictly his due, for we have held that the mere relation of father and son does not per se create a presumption of fraud or undue influence in a mutual dealing, but may do so when connected with other facts showing inequality or controlling influence. (Cowee v. Cornell, 75 N. Y. 101 .) We must assume, therefore, as true the finding upon the facts that there was neither fraud nor undue influence exercised in procuring the receipt, and that it rested upon no error of law of which the defendant can complain.

It is insisted, 'however, that the delivery of the receipt con

stituted no valid gift, because it was a mere executory promise without consideration to indorse $2,000 on the mortgage. We think it was much more than that, and amounted to a present gift instead of a mere promise to give. (Champney v. Blanchard, 39 1ST. T. 111; Gray v. Barton, 55 id. 68; Ferry v. Stephens, 66 id. 321.) Although the receipt contained a provision that the sum given was to be indorsed on the mortgage, neither that promise nor its performance were essential to the gift of so much of the debt. If there had been no gift manifested or intended outside of that promise, a different case would have been presented and given room for the defendant’s contention. But as an actual payment at once extinguishes the debt whether promised to be indorsed, or in fact indorsed or not, so an actual present gift of the whole, ara part of a debt, operates at once to extinguish it completely or pro tanto, whether indorsed upon the instrument which is the evidence of the debt or not. The question comes back to the inquiry, whether there was such actual gift both intended and executed. That fact is found and rests upon sufficient evidence. There must be a delivery of the gift, the donor must part with his dominion over it, it must not rest in a mere promise. But the character of the gift dictates the manner of its delivery. Here a receipt for so much of the mortgage debt was executed and delivered with the intention of giving it to the mortgagor. The mortgage itself was not delivered because not wholly discharged, and the gift was executed by the delivery of the receipt which operated to cancel and discharge so much of the debt.

An objection was taken to the admission of the testimony of Anna. Stevens founded upon section 829 of the Code. She was not a party to the action, but was claimed to be both a specific and residuary legatee under the will of her'father, and so interested in the event of the action, and testifying in' her own behalf and interest. The Code, as it now stands, has -modified section 399 of its predecessor, by inserting the words “ in his own behalf or interest, or in behalf of the party succeeding to his title or interest.” As thus amended the witness did not fall within the prohibition. As specific legatee she was.

totally unaffected by the result of the pending litigation, and as residuary legatee, her plain and direct interest was against the validity of the gift which her evidence tended to establish. She testified not in her. own behalf or in her own interest, but against it, and for that reason her testimony was properly admitted.

We think no error was committed in the disposition of ithe case, and the judgment should be affirmed, with costs.

All concur, except Miller and Tract, JJ., not voting.

Judgment affirmed.