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Weller v. Weller

2 Silv. Ct. App. 134 Court Court of Appeals, Decision date 1889-01-15 English

Delivered by Danforth, J.

Contents

Majority

p. 134
Peter Weller et al., Respondent, v. Louis Weller et al., Appellants.
Court of Appeals,
January 15, 1889.

Headnote

Affirming 44 Hun, 170 .
1. Appeal. Befusal to find.—The refusal of the trial judge to find certain facts as requested, where no exception is taken thereto, is not the subject of review in the court of appeals.
2. Deed. Fraud-—Where the sons prepare a deed of valuable real estate and procure their aged parents to execute it, without consideration under a misapprehension of its contents, the conveyance will be set aside at the suit of the grantors.
Appeal from a judgment of the general term, affirming a judgment entered upon' the decision of the court.
Spencer Clinton, for appellants.
Truman C. White, for respondents.

The findings of the trial judge were excepted to, but the exceptions are not argued upon this appeal. They were, however, well considered by the learned judges of the general term, and to the opinion pronounced by that court (7 N. Y. State Rep. 768) no answer is made. On the other hand, the refusal of the trial judge to find certain facts, as requested b)r the defendants, is alone assigned as error, but no exception was taken to that refusal, and it is, therefore, not the subject of review in this court. We have, however, examined the evidence in the light of the argument presented for the appellant, and find abundant reason to support the conclusion of the courts below, that advantage was taken of the peculiar condition of the injured parties, and that the defendants obtained their participation in the transaction now in question by imposition amounting to fraud;

p. 135
that there was neither good faith on the part of the defendants, nor a true consent on the part of their aged and infirm parents, to the conveyance which they were induced to execute.

We think the conclusions of the trial court were warranted by the case made, and it necessarily follows that the judgment appealed from should be affirmed, with costs.

All concur.