Rosevear v. Sullivan

Hatch, J.: The plaintiff is .a woman considerably advanced in years, who owned the property which is the subject of this action. She had lived alone upon a part of the premises, and had rented a part to the defendant Timothy Sullivan for some time prior to the execution of the deed. Some taxes having accumulated upon the property under which it might be sold, the' plaintiff was considerably distressed thereby, and applied to the defendant Timothy Sullivan for advice. He advised her to see her relatives and ascertain if money could not be raised by them to pay these taxes. The Tela* tives of the "old lady refused relief, and she again applied to him for further advice. At that time or before, either through himself or through his wife Ellen, a proposal was made by the defendants to provide for the support of the plaintiff daring her lifetime, and her decent burial after death, in consideration of the plaintiff’s giving her property to them. To this proposition the .plaintiff assented. Thereafter, and in June, 1896, a deed of the premises was drawn, executed by the old lady, and the defendants caused it to be recorded, procured a loan of $500 upon the premises, from the proceeds of which the taxes were paid and an incumbrance of $119 and interest was discharged. The plaintiff continued to live with the defendants [423] until about November second of the same year, when she left the house with her daughter. ■ It is evident from a reading of the testimony that the plaintiff. was old and enfeebled, while the defendants were in the full possession of all their faculties. The character of the examination and the testimony given by the plaintiff, appearing in the record, constitute the best evidence of these facts, and also of the fact that the parties did not deal upon terms of equality. The testimony of the plaintiff was contradictory in many respects; while making affirmative answer to all that defendants’ counsel asked her, she immediately proceeded to contradict such testimony in answer to questions by her own counsel. The whole examination indicates a mind of wavering character and of small understanding. The court, in delivering its decision, stated- among other things: “ I do not think this transaction can be upheld. The plaintiff was in a dependent condition in relation to Hr. Sullivan and his wife. That I spell out of the facts, and it is overwhelmingly corroborated by the appearance of the woman; my seeing her and hearing her testify. I find that she was in a dependent relation to Hr. and Hrs. Sullivan. That creates the presumption that the transaction was not fair, because she gave the property without consideration to a stranger. I do not think that presumption has been removed.by the evidence.” While it may be said that the agreement to support, if fairly made upon a full understanding by the parties, dealing upon terms of substantial equality, would furnish a .good consideration for the deed, yet where they do not so deal and where one party has the advantage of the other, then the burden is upon the stronger party to furnish satisfactory proof that the transaction was in all respects fair. (Matter of Will of Smith, 95 N. Y. 516; Cowee v. Cornell, 75 id. 91.) And if there be failure in this regard, constructive fraud will be presumed. (Green v. Roworth, 113 N. Y. 462.) Where it is claimed that one party is dependent upon the other, and such a relation existed as precludes the idea that they dealt upon terms of equality, the appearance of the parties themselves oftentimes furnishes the; strongest and most conclusive evidence of the fact. We have before observed that the testimony in this case strongly indicates feebleness and wavering upon one side and comparative strength upon the other. Under [424] such circumstances the controlling factor in determining whether that quality which the law requires exists or not is the appearance of the parties themselves. In the present case the court has stated in terms that the appearance of the parties is the convincing fact which controlled its judgment. There is,' therefore, presented a case of a class where the facts which are controlling with the court, are impossible of transmission to an appellate tribunal which deals-alone with a printed record. Scarcely a shadow of the controlling-fact governing the action of the learned court below is now before-us, and we are required to give force and effect to such consideration. (Adee v. Hallett, 3 App. Div. 308, 311; Marden v. Dorthy, 12 id. 176, 185; Bullion v. Bullion, 73 Hun, 437, 441; Siefke v. Siefke, 5 Misc. Rep. 406.) In the absence of affirmative error appearing in the record, the-finding based thereon should receive sanction and support. In the-present case it is clearly apparent that the defendants will not have-suffered the loss of a single penny. All of the moneys which have been expended by them upon this house were raised upon it as security. The defendants have been in the use and occupation of the premises since the deed was executed and are at present in the enjoyment of them, having paid no rent. The excess of money-received over and above the amount which the defendants have-paid in dischai'ge of the taxes and the incumbrance, was sufficient to pay for the support and maintenance of the plaintiff during the-time she resided with them.. If other expenses- were incurred in-excess of such sum, they have not been proved upon this trial. It is fairly to he gathered from the record that some difficulties have-arisen between Mrs. Sullivan' and the plaintiff, which rendered residence by the former with the'latter more or less uncomfortable.. If the-transaction be permitted to stand it seems fair to assume that the plaintiff will not be able to enjoy, at least with any degree of comfort, the consideration for the property. It is, therefore, evident that as the defendants will not have suffered loss, and the plaintiff will lose for all practical purposes her'entire property, this transaction should not be upheld unless the court be absolutely compelled to that course. In addition to this it appears that, while all agree that the consideration for the deed was the agreement to' support, during life and burial' after death, yet such consideration was not [425] recited in the deed and there is nowhere, any evidence of the same except in the oral testimony of the witnesses. In view of all the facts in the Case and the determination of the court, based upon the appearance of the witnesses and their manner of giving testimony, we think that the conclusion reached by the court should have the sanction of this tribunal. The judgment should be-affirmed. All concurred, except Woodwabd, J., who read for reversal, and Hibsohberg, J., taking no part.