O'Neill v. Nolan — 21 N.Y.S. 222

Majority

p. 222

O’NEILL v. NOLAN.

(Supreme Court, General Term, Second Department.

December 12, 1892.)

Headnote

Mortgage—Foreclosure—Defense of Insanity—Evidence. Evidence that seven months after the execution of a mortgage the mortgagor was adjudged insane, and that at the time of executing the mortgage-he was in the habit of becoming intoxicated, and had acted indiscreetly and-improperly, is not sufficient to sustain the defense of mental incapacity, where his signature to the mortgage is firm and steady, and the notary who-took the acknowledgment testifies that at the time of the transaction the-mortgagor was sober, and apparently intelligent.

Appeal from special term, Rings county.

Action by James O’Neill against John Nolan to foreclose a mortgage. Plaintiff obtained judgment. Defendant appeals. Affirmed.

The mortgage in suit was given September 11, 1889, to secure a-debt of $500. Defendant paid $50 on account, October'll, 1889, and $50 more on November 14,-1889. On April 22, 1890, the defendant was adjudged a lunatic. There was evidence to the effect that at the-time he executed the bond and mortgage he had a habit of intoxication, and that he had committed acts showing want of discretion and propriety. But the testimony of the notary who took his acknowledgment of the mortgage was positive that at the time of the transaction-he was sober, and apparently intelligent. His signature was firm and steady.

Argued before BARNARD, P. J., and DYRMAN and PRATT, JJ„.

p. 223

Wm. M. Benedict, for appellant.

John T. Barnard, for respondent.

This action is for the foreclosure of a mortgage upon real property, and is defended upon the ground of the mental incapacity of the mortgagor at the time of the execution of the bond and mortgage. The cause was tried before a referee to hear and determine-the same, and he has decided against the defendant. The testimony established no defense to the action, and the judgment should be affirmed, with costs. All concur.