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the mortgagor to Jasper, who fully paid to Jasper, and that the acknowledged satisfaction of the satisfaction was ineffectual to dismortgage. Plaintiffs were then of charge the mortgage. age.

Judgment atfirmed, with costs. C. D. Murray, and Morris & Opinion by Bradley, J.; Smith, Lambert, for applts.

P. J. and Corlett, J., concur; W. Woodbury, for respts. Barker, J., not sitting.

Held, Jasper was not a trustee for plaintiffs. It was the mortgagor's duty to pay the money to

DEEDS. REVOCATION. plaintiffs and their right to receive N.Y. SUPREME COURT. GENERAL it. So the mortgage declared. TERM. FOURTH DEPT. The common law rule that in respect to a deed inter partes a

Thomas Houghton, applt., v. stranger could not avail himself Hannah Houghton et al , respts. of a stipulation therein in his favor

Decided Oct., 1884. was technical and does not exist in this State. 20 N. Y., 268 ; 24

Where a man, in what he believes to be his

last sickness and in view of approaching id., 178; 41 id., 179; 48 id., 253.

death, deeds his property to his wife The power of sale, so far as it through a third party, without considerarelated to the fund secured for

tion, at his wife's request, she representing

to him that by so doing he will save the plaintiffs, had reference to

expense of administration on his estate, proceeding during their minority.

and he subsequently recovers, he can mainAfter that the execution of the tain an action to revoke said deed, and a power would be for their benefit complaint alleging said facts states a good and subject to their control after

cause of action. payment to Jasper of his share.

Appeal from judgment, entered See 1 R. S., 737, 133. Plaintiffs on the decision of the court at were practically made parties to Special Term. the mortgage as effectually as the The complaint stated that on assignment by a creditor of a debt May 15, 1874, plaintiff was the secured by mortgage would give owner of certain land therein dethat relation to the assignee. 7 scribed ; that on that day, being Cow., 747; 64 N. Y., 44; 74 id., very sick and not expecting to live 354-5; 21 La. Ann., 529. Jasper and in view of death he was inhad no more right than a stranger duced and persuaded to execute, to receive payment of plaintiff's acknowledge and deliver to demoney and satisfy the mortgage, fendant M. a deed of said land so and so the mortgagor was advised that he might deed the same to by its terms. |

See 5 Cow., 302; 9 plaintiff's wife, the defendant Wend., 80; 23 Barb., 461; 1 R.S., Hannah ; that there was no con761, $ 28; 13 Hun, 475 ; 47 N. Y., sideration for said deed; that it 308.

was done for the purpose of pass. The evidence justified the con- ing the title to said property to clusion that the money was unlaw. | Hannah ; that on the same day M.

executed and delivered to defend Held, Error; that upon the case ant Hannah a deed of said prem presented by the complaint plainises, the consideration expressed tiff was entitled to relief and that, in each deed being $1 ; that plain- therefore, a cause of action was tiff deeded said property “for stated. no other consideration than that There are many English cases he believed he was abont to die ; on the subject of voluntary settlethat the matter was talked over ments of real estate where there between himself and defendant

was no power of revocation. The Hannah at the time aforesaid; that absence of this is deemed a suspishe told plaintiff that she believed cious circumstance, and in such he was in his last sickness and cases the rule seems to be that

very could not long survive and that by slight evidence of mistake, misapdeeding the property to her it prehension or misunderstanding on would save the expense of an ad the part of the settler will be laid ministration upon his estate; * hold of in a court of equity to set that said defendant Hannah said aside the deed. i Perry on Trusts, that he should not want for any. 2d Ed., 96, Note 2. See 30 Beav., thing as long as he lived ; that 243; L. R., 9 Eq., 44. See also 9 subsequently Hannahı deeded the C. E. Green, 243. property, without consideration, The general rule is that an act to her son, defendant John, who done, or a contract made, under a took the same with knowledge of mistake or in ignorance of a maall the circumstances of the trans.terial fact is voidable and relievfer ; that plaintiff has demanded able in equity, 1 Story Eq., $ 140, of each of them a reconveyance and an action lies for its rescisand notified them that he revoked sion, 4 Lans., 41 ; although in genhis conveyance and desired the eral it cannot be reformed unless property back and they each re- the mistake is material. This prinfuse to reconvey or to give himciple includes executed as well as possession; that he has received executory contracts, 1 Story Eq., board a part of the time, but of $ 159, and for the purpose of deterpoor quality and insufficient, and mining upon such mistake parol has been ill-treated by said Han- evidence is in equity admissible to nah and John. Judgment was de qualify, correct or defeat the manded declaring the deeds null terms of written instruments. 2 and void or directing a reconvey. Story Eq., $ 1531 ; 2 Whart. Ev., ance and for an accounting and S 1054. What will constitute a for general relief.

material fact, a mistake of which The court directed a dismissal of will furnish a basis for relief in the complaint as not stating facts equity, depends largely upon the sufficient to constitute a cause of circumstances of each particular action.

W. E. Scripture, for applt. Here is a complaint in which it A. Coburn, for respt.

is alleged that plaintiff, while very Vol. 20.-No. 10b.

case.

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sick, in view of death, and be- English cases and the New Jersey
lieving that he was in his last sick case.
ness, and for no other considera-

Judgment reversed and new
tion whatever, made to his wife a trial granted, costs to abide event.
conveyance of apparently all his Opinion by Merwin, J.; Har-
property ; that the matter was din, P. J., concurs; Follett, J.,
talked over between them, the absent.
wile telling plaintiff that she be-
lieved he was in his last sickness FIRE INSURANCE.
and could not long survive and

N. Y. SUPREME COURT. GENERAL that by deeding the property to

TERM. FIFTH DEPT. her the expense of an administration upon

his estate would be John Hodge, respt., v. The Se. saved. No fraud or undue influ- curity Ins. Co. of New Haven, ence is in terms alleged, but it applt. is stated generally that plaintiff

Decided Oct., 1884. was induced and persuaded to give the deed and that the wife Plaintiff applied for insurance to H., an intold plaintiff that he should not

surance agent, who employed E., a solicitor

of insurance, to obtain the same. want for anything for his comfort

plied to defendant's agents, who issued the as long as he lived. According to policy, but stated 10 E. that it should be these allegations it is very appar subject to approval by the company, and ent that the expectation of

that if the company disapproved it the

policy was to cease; the company did disspeedy death was the most mate

approve, and H. and E. were so notitied, rial circumstance in the transac

but no notice thereof was given plaintiff, tion, and that not only plaintiff, and the properly insured was burned. Held, but his wife, supposed that plain

That the company was bound by the tiff's sickness was such that death

policy. would speedily result and, both Appeal from judgment on veracting on that belief, the deed was dict at Circuit. given. In this both were mis'aken, Plaintiff applied to H., an inand the wife is now, according to surance agent of Lockport, for the complaint, seeking to take an insurance on his opera house block unconscionable advantage of a iu that city. H. spoke of the mistake that she not only partici- matter to E., a broker in Buffalo, pated in but encouraged, This who accordingly applied for the would present a basis for relief on policy to defendant's agents at the ground of mutual mistake. Buffalo, and they issued it and E.

It is also fairly inferable from handed it to H., who delivered it the allegations of the complaint to plaintiff. The agents at first that plaintiff did not intend to objected to taking the risk, but make his deed irrevocable only in finally told E. they would take it

ase of his death, and that would conditionally, subject to approral furnish a basis for the action on of the company, and that if the the grounds recognized in the company disapproved it the policy

case

was

was to cease and be returned im- payment is evidence of waiver and mediately. The company disap- of intention to give credit. 35 N. proved the risk, and the agents, Y., 131 ; 51 id., 117, 122 ; 68 id., hy letter, so informed E. and 439, 440. Besides, defendant's asked the return of the policy ; E. agents had an account with E. requested H. to take up the policy, which they settled from time to but no communication was made time, for premiums on policies to plaintiff. The property was issued at E.'s solicitation, and this burned and plaintiff recovered on relation permits the inference that the policy in the court below. prepayment in this

Edward D. McCarthy, for waived. applts.

Judgment affirmed. Geo. C. Greene, for respt.

Opinion by Bradley, J.; Smith, Held, That the judgment was P. J., Barker and Haight, JJ.. right. The policy cannot be treat concur. ed as having been delivered in escrow. 5 N. Y., 229; 49 id., 110;

LIMITATIONS. 59 Mo., 139. Defendant has the burden to clearly show that the N. Y. SUPREME COURT. GENERAL policy did not become operative,

TERM. FIFTH DEPT. and it is not subject to defeat by the oral agreement. 6 Allen, 351;

In re petition of Martin Clark, 11 Pick, 417; 4 Gray, 504.

admr., applt., v. Catherine Latz, Wood v. Poughkeepsie Mut.

exrx., respt. Ins. Co., 32 N.Y., 619, distinguish Decided Oct., 1884. ed. Notice to E. was not notice to

A. died February 6, 1876, and in the same

month B. was appointed administrator, but plaintiff. E.'s agency ended when

did nothing as such except draw from bank he had procured the policy. 109 some money of A.'s. B. died May 18, 1880, U.S., 278.

having in his will nominated C. as his exStandard Oil Co. v. Triumph

utrix. Petitioner was, on September 22, Ins. Co., 64 N. Y., 85; McLean v.

1880, appointed administrator de bonis non

of A., and on December 14, 1881, filed with Republic Fire Ins. Co., 3 Lans., the surrogate his petition, under $ 2606, 421, distinguished.

Code Civ. Pro., praying for judicial setDefendant sought to prove a

tlement of the account of B, as adminis

trator, and that C. as executrix show cause custom as existing between insur

why she should not render such account, ance agents and brokers in Buffalo,

and deliver to petitioner any of such propof giving and taking notice of erty which had come to her hands or was termination of insurance obtained

under her control. Held, That the petition

is not barred by the statute of limitations. by the latter.

Held, That they could not create Appeal from order of Surrogate's a custom that would vary the Court, dismissing petition. terms of the contract.

On December 14, 1881, Clark Also held, That delivery of the filed with the surrogate his pepolicy without requiring

requiring pre. I tition, by which it appeared that

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A. died intestate,. February 6, 56, 66; see 2 R. S., 95, $ 71; 2 1873, and letters of administration Rob. (N. Y.), 556, 569 ; S. C., 28 were issued to B., who filed his How. Pr., 324 ; 81 N. Y., 580; 6 inventory on the 13th of that Metc., 194; S. C., 39 Am. Dec., month, representing that all the 716, 719 ; 27 Conn., 344; 16 Wall., personal estate of his intestate 535; 5 Mon. T. B., 19; 17 Am. was $1,050.57, in bank; that B., Dec., 33; 2 Porter, 550 ; 27 Am. as such administrator, immedi- Dec., 667; 3 Rawle, 361 ; 24 Am. ately drew that money from bank, Dec., 359 ; 5 Smedes & M., 130; and did nothing further as admin. | 43 Am. Dec., 502 , 17 Ala., 653; istrator ; that he never rendered 52 Am. Dec., 190. any account ; that on May 18, If respondent's position is right, 1880, B. died, leaving a will by that at the time $ 2606, Code Civ. which he nominated defendant Proc., became law, and when this executrix; that the will was ad proceeding was instituted, the mitted to probate and letters tes- remedy sought was barred by the tamentary were issued to defend statute of limitations, then the ant on August 26, 1880, and she petition was properly dismissed. duly qualified; and that petitioner, 8 Rep., 152; 1 Heisk., 280; 2 Am. on September 22, 1880, was ap- R., 700; 13 Fla., 393; 7 Am., pointed administrator de bonis 239 ; 5 Heisk., 353 ; 13 Am., 5; 54 non of A., took out letters, and N. H., 167; 20 Am., 131 ; 86 N.Y., duly qualified. The petition 580, 581. prayed for a judicial settlement This question here depends upon of the account of B. as administra- the fact that for more than six tor, and that defendant as execu- years there was a remedy at law, trix be cited to show cause why concurrent with that in view by she should not render and settle this proceeding, which is in its nasuch account, and deliver to pe- ture equitable. See 1 Edw. Ch., titioner any of such

such property 343 ; 15 N. Y., 509; 3 Abb. Pr., which had come to her possession N. S., 247; 2 R. S., 301, § 49; 7 or was under her control. The Lans., 368 ; 30 Hun, 537; 2 R. S., matter came on to hearing, and 114, $ 9. The next of kin were the petition was dismissed on the barred. 1 Barb. Ch., 455; 42 ground that the six years' statute Barb., 75; 51 id., 552; S. C. of limitations was a bar. The affd., 41 N. Y., 619; 25 Hun, 482. proceeding was instituted under The creditors, if any, were not § 2606, Code Civ. Proc.

barred at the time of the death of Martin Clark, for applt.

the chief administrator. 2 R. S., Adelbert Moot, for respt.

448, § 8. Petitioner is neither Held, That if B. set the money creditor nor next of kin. apart and kept it separate from Clark v. Ford, 1 Abb. Ct. App. his own, and it continued so to Dec., 359 ; 3 Keyes, 370; 34 How. the time of his death, it would Pr., 478; 3 Abb. N. S., 245, disprobably go to appellant. 4 Fla., ' tinguished.

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