Mitchell v. Barnes

Bookes, J. : Appeal from an order of tbe Special Term, appointing a receiver. The defendant is right in his statement made in his affidavit, “ that this is not an action of ejectment.” Hence the authorities to the effect that a receiver will not be appointed before judgment in a pure action at law in ejectment, Burdell v. Burdell (54 How. Pr., 91), Guernsey v. Powers (9 Hun, 78), Thompson v. Sherrard (35 Barb., 593), are not in point. Nor has the decision in Bockes v. Lansing (74 N. Y., 437) application here. In that case the court held that the action, being an action to remove a cloud upon the title, could not be maintained because the deeds sought to be set aside “ did not on their face transfer any title as against the plaintiff.” (p. 111.) It is otherwise in the case in hand. Nor is the decision in Van Deusen v. Sweet (51 N. Y., 378) an authority against the plaintiff’s right of action and claim for a receiver. It was there decided that an action of ejectment might be maintained in a case like the present; but no intimation was there given that full and ample relief in equity against a deed fraudulently obtained might not also be maintained. It is true, the learned chief commissioner there says, that in case of an dbsolntely void deed, one that never had legal existence or vitality, there would be nothing to set aside by the interposition of a court of equity, or by recourse to an equitable action. But it was not intended to assert the doctrine that an action to set aside a voidable deed, one obtained by fraud and improper practice, or by undue influence, from a person of weak intellect ■ or of unsound mind, could not be maintained in equity. If this was intended, it would be a mistaken assertion, in conflict with well-settled principles of equity jurisprudence. The action in this case is based on purely equitable considerations. It is brought to set aside conveyances voidable at the election of the proper party to assert their invalidity, because fraudulently obtained without consideration from a person of unsound mind. Such is the theory of the action; and a case for the relief demanded is made on the averments of the complaint. Whether they will be sustained on the trial is a different question. The question before [199] us rests upon the papers submitted on the motion for a receiver. •'On these papers it appears that the defendant obtained from the plaintiff, who sues by her committee, a large amount of property, principally real estate, valued at about $20,000, without considera■tion; that the grantor, as is found by inquisition obtained in due form, was at the time of unsound mind, incapable of managing her affairs, to the defendant’s knowledge, and that, independent of -the property so obtained, the defendant is wholly insolvent. These •alleged facts stand on this motion substantially undenied, and with other undisputed formal averments in the complaint, make a proper «case for the appointment of a receiver. It is true the defendant ■denies in general terms that he obtained the conveyances by duress, undue influence, or by means of trick, artifice or fraudulent pracfice; and he asserts that the were voluntarily executed and delivered by the grantor, in the exercise of an unfettered will and an unclouded reason. But there is no denial of the alleged facts that the deeds were without consideration, or that the grantor was, according to the inquisition, a person of unsound mind and incapable «of managing her affairs with judgment and propriety. The inquisition was presumptive evidence of her incapacity. (Van Deusen v. Sweet, 51 N. Y., 386, and cases there cited.) It is also established that the defendant is insolvent, independent of the property charged to have been fraudulently obtained by him, and that the -annual avails and profits derivable therefrom is from $600 to $800, «exclusive of taxes and assessments. It also appears that he has been in receipt of such rents and profits for several years, and has thus been fully recompensed for all repairs and improvements made by •him. As the case was made at Special Term on the motion for a receiver, the order was properly granted. The order appealed from should be affirmed, with $10 costs, and. •expenses for disbursements. Martin, J., concurs.