Curran v. Hosey

The action, in form, is partition. Michael Hosey and John Hosey were brothers, and were the owners in fee, as tenants in common, of the premises in question. On January 16, 1890, John Hosey conveyed his interest in this title, by quitclaim deed, to his brother, Michael. Michael predeceased John, and John died, intestate, April 16, 1910. The defendants are the heirs at law and widow of Michael, and they claim title to the premises by descent. The plaintiff is the daughter and only heir at law of John, and she likewise claims title by descent.

Plaintiff seeks, in this partition action, to have declared void the deed of conveyance from her father, John, to the grantee, Michael: (1) Because of the mental unsoundness and incapacity of the grantor; and (2) because the execution and delivery of that deed were the product of fraud, threats, intimidations, misrepresentations, and deceit, practiced by the grantee, upon the grantor. At the close of the evidence, defendants moved for a dismissal of the complaint and the direction of a verdict, adverse to the plaintiff, upon the grounds, among others: (1) That the deed of conveyance could not be attacked in an action of partition; and (2) that the right of action in the plaintiff, if any, was barred by the statute of limitations.

[1] The first ground is without merit. It was stipulated at the close of plaintiff’s case, and again at the close of the evidence, that, if the jury should determine that the conveyance was not the free and uninfluenced act of the grantor, then plaintiff would be entitled to the usual judgment in partition. This stipulation and concession eliminates the question, now sought to be raised, that the conveyance could not be so attacked.

[2] Even if this was not so, section 1543, art. 2, of the Code of Civil Procedure, provides for just such a contingency. The language is plain and unambiguous. It reads:

“The title or interest of the plaintiff, in the property, as stated in the complaint, may be controverted in. the answer.”

Plaintiff alleges her ownership, as heir at law of her father, of an undivided one-half of the premises. Eor the purpose of evidencing her title, she demands that the apparent record title of the defendants be declared void and partition effectuated. Constructions of this and kindred sections of the Code have been made by the courts, authorizing the relief sought by the plaintiff. Best v. Zeh, 82 Hun, 232 , 31 N. Y. Supp. 230 , affirmed on opinion below in 146 N. Y. 363 , 41 N. E. 88 ; Thomas v. Thomas, 9 App. Div. 487 , 41 N. Y. Supp. 276 ; Ocobock v. Eeles, 37 App. Div. 117 , 55 N. Y. Supp. 1118 ; Zoccolo v. Stern, 25 Misc. Rep. 246 , 55 N. Y. Supp. 58 .

[3] The plea of statutory limitations is equally without merit. The contract, pursuant to which the conveyance was made, imposed upon grantee, his heirs and representatives, the obligation to furnish a home and. care for and maintain the grantor through his life. The delivery of the deed was performance by the grantor; but the undertaking, on the part of the grantee, his heirs and representatives, upon which it was delivered and received, was executory. By the

[4] At the close of plantiff’s case, defendants moved for a non-suit, upon several grounds, among others, that the plaintiff had failed to prove that Michael Hosey did induce, persuade, coerce, and procure John Hosey, by pressure and undue influence, to execute and deliver this deed. The court denied the motion, but withdrew from the jury the question of undue influence, declining to submit that issue, for the expressed reason that there was no evidence whatever of any undue influence. The motion, as based upon • a failure of proof to establish lack of sufficient mental power in grantor to comprehend the nature and quality of the acts of execution and delivery of this deed, was denied. Again, at the close of the evidence, like ruling was made and exception taken. The jury rendered a general verdict that plaintiff was entitled to recover. The sufficiency of the evidence to uphold that determination is the principal question here involved. Except as to the refusal to submit the issue of undue influence, the charge of the court seems to have been acquiesced in by counsel, as adequately and properly presenting the rules of law, applicable to the facts developed.

In determining the weight of the evidence upon the issues submitted to and determined by the jury, a better view is had by consulting the situation of the parties as disclosed in the proof. John and Michael Hosey married sisters. John’s wife died in February, 1866, nine days after the birth of plaintiff, their only child. John never married again. Within a year or two he went into Michael’s family to live. Plaintiff was taken into the home and family of her mother’s parents, and continued to reside there, until her marriage January 1, 1890. From 1873 to 1876, John and Michael purchased the premises in question, and operated the same as tenants in common until this deed was made in January, 1890. In 1888 they joined in a mortgage upon the premises to secure a loan of $1,200. In February, 1885, John suffered a stroke of paralysis, involving one side of his body. As a result, he was prostrated for from four to six weeks. His mouth was drawn to one side, and his vocal chords were affected to an extent of interfering with articulation. He so far recovered as to go about and do light chores upon the farm, but he never recovered his normal physical condition.

It seems to be agreed that during this period, prior to the paralysis,

Nor does the making of this .arrangement with Michael, instead of with some one else, present any suspicious situation. The consideration paid by grantor by this deed was not so great as to make the contract unconscionable. All his property interests were with his brother. He had resided in Michael’s family for years. The transaction itself does not aid the plaintiff.

John’s physical impairment is unimportant, except as it is shown to have been accompanied by a mental impairment. No presumption arises of a mental deterioration. Such a view would be opposed to our everyday observation. Plaintiff, upon this branch of the case, called many witnesses, who testified to conversations with grantor, intervening the paralysis and the making of the deed. These conversations relate, almost exclusively, to casual meetings and talk. They throw no light upon his ability to engage in business transactions. They are all as consonant with a rational mentality as with an irrational one. If these witnesses gained any impressions, from these talks, of irrationality upon his part, either from his demeanor or talk, they have' failed to disclose them. The jury was furnished with the mere recital of the talk, and had no means of going behind those conversations and reaching any intelligent conclusion as to this man’s mental condition. The witnesses do not even give the impressions made upon them by these incidents.

The scrivener of the deed is dead, as are the parties to it. W,e are not furnished with any direct proof of this man’s mental condition upon the day the deed was executed. The defendants have, however, fairly established that there were many occasions, at about the’ time the deed was drawn, when John Hosey was competent. His general conduct seems to have remained unaffected by his misfortune, except as was to have been expected. His infirmity and his advancing age naturally made more marked his tendency toward retirement. But he could and did, upon occasion, converse freely and understandingly, and he successfully handled such matters as he undertook.

Taking into account the fact that he displayed sufficient mental capacity upon other occasions, the entire lack of proof of his condition on the day the deed was made, and the entirely natural manner in which he undertook to provide for his future support, we think it must be said that plaintiff failed to meet the burden of proof imposed upon her.

[5] There is another feature to which attention is called, that it

The order appealed from should be reversed, and a new trial or-' dered, with costs to the appellant to abide the event of the action.

Order reversed, and new trial granted, with costs to appellants to abide event. Held: (1) That the evidence is insufficient in probative force to sustain the allegation that, at the time of execution and delivery of the deed mentioned in the complaint, the grantor was incompetent to understand the nature and quality pf the act of execution and delivery; (2) that the verdict is contrary to and is not supported by the evidence; (3) that the verdict is contrary to law. All concur.