#### Joel E. Faulkner, Appellant, *v.*Eliza Faulkner, Respondent.

Fourth Department,

May 6, 1914.

Husband and wife — suit to set aside deed procured in bad faith — duress — wife trustee ex maleficio — laches.

Where a wife procured from her husband a deed of a house and lot under the threat that if he did not deed it to her she would leave him, but promising if he did she would remain with him, be a wife to him, rear their child and they would always have a home, with the fraudulent intent of continuing to live with him only as long as she liked and then to break up the home and keep the property as her own, she becomes a trustee *ex maleficio,*and upon the betrayal of the confidence which the husband has placed in her, he is entitled to a reconveyance of the property.

It is not necessary that a strict case of duress should be established in order to set aside a deed procured under such circumstances.

The fact that the husband failed to bring suit to set aside the deed until after his wife had refused to live with him and to reconvey the property did not constitute laches or unreasonable delay.

Robson and Foots, JJ., dissented.

Appeal by the plaintiff, Joel E. Faulkner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 28th day of June, 1912, upon the report of a referee appointed to hear and determine the issues.

*John Griffin*and *F. J. Nelson,*for the appellant.

*James A. Parsons*and *Harry K. Brown,*for the respondent.

Kruse, P. J.:

The parties are husband and wife. The action is brought to set aside a deed given by the husband to the wife ' for a house and lot situate in the city of Hornell. The complaint was dismissed and the plaintiff appeals.

The house and lot were -purchased by the plaintiff in 1900 and the parties made the premises their home, with their infant child, until about March 20, 1904, when the house was partially destroyed by fire. On the day of the fire defendant accused her *849husband of burning the house. She called him vile names, demanded a deed of the premises, and stated that she would leave him and take their child, .unless he gave her a deed of the house and lot, and that if he gave her the deed she would remain with him, be a wife to him, rear the child and they would always have a home. He suggested that the title be held by them jointly, but that would not satisfy her. She continued her threats until she obtained the deed.

The parties continued to live together until about March 7, 1910, when the defendant without just cause or provocation, as the referee finds, left the plaintiff and their child, associating with persons of bad character and frequenting places of evil repute.

The deed in question was made April 11, 1904, evidently while the plaintiff was laboring under great mental distress. On that day, before the deed was executed, defendant was very violent. She made her threats as before, tore her hair, assaulted her husband, broke furniture, and he yielded to her entreaty and demand and conveyed the premises to her, confiding in her and evidently expecting that she would live with him and hold the property as a home for them and their child. But she betrayed his confidence. She seems to have thought then, as she thinks now, that after getting the deed she could do with the property as she liked. After she left him he asked her what she was going to do about disposing of the property. She replied that she would do as she liked; that she would dispose of it; that she had got him now and he could get out. He asked her to give him half, but she refused. Afterward he saw her' with the man whom he accused of breaking up his home. He asked his wife whether she was going with him or with the other man. She replied with the other man, and they locked arms and went off together. The plaintiff followed and an altercation took place, but it is sufficient to say that the husband was unable to persuade his wife to return to him or to give up the property. Hone of these things was denied by her upon the trial.

The defendant contends that the deed was voluntary and that the plaintiff is without legal redress, although she refused *850to live with him or rear the child, or hold the premises as a home.

I think the circumstances of the obtaining of the title by the defendant and of her subsequent misconduct are so unconscionable as to justify the setting aside of the conveyance. It is not necessary that a strict case of duress should be made out to set aside this deed. Circumstances of extreme necessity and distress, although not accompanied by any direct restraint or duress, may justify the setting aside of the deed. *(Van Dyke*v. *Wood,*60 App. Div. 208, 214; *Baird*v. *Baird,*145 N. Y. 659.) I think the conveyance was not a voluntary conveyance in the sense that she became the absolute owner. It was rather in the nature of a trust.

If she made the statements to her husband in bad faith, for the purpose of inducing him to convey the house and lot to her, with the fraudulent intent upon her part to simply continue to live with him as long as she liked and break up the home and family relation when she chose and keep the property as her own, as I think is evident from her conduct, she became a trustee *ex maleficio,*and upon the betrayal of the confidence which the plaintiff had placed in her, he was entitled to a reconveyance of the property. *(Goldsmith*v. *Goldsmith,*145 N. Y. 813; *Grote*v. *Grote,*121 App. Div. 841, and kindred cases.) The same rule has been applied in other jurisdictions. *(Stahl*v. *Stahl,*214 Ill. 131; 2 Am. & Eng. Anno. Cas. 774, 777, n.; 3 Pom. Eq. Juris. [3d ed.] §§ 1053, 1055, 1056.)

The plaintiff’s failure to bring the action sooner than he did does not conclude him from maintaining it. He had a right to rely upon her statements and promises, and so long as she was fulfilling her marital obligations and holding the property as their home he was justified in believing that she had acted in good faith in obtaining the property. It was not until she left him and repudiated her promise and refused to carry out the purpose for which the deed was máde that her fraudulent purpose was disclosed.

I am of the opinion that judgment should be directed for the plaintiff; but if a majority think a new trial should be awarded, I am willing to yield to that disposition of the case.

All concurred, except Robson and Foote, JJ., who dissented.

*851Judgment reversed and new trial granted, with costs to appellant to abide event;' and the findings of fact numbered VIII, IX and X, so far as they find that the deed was not executed under constraint and in the nature of a trust, and the finding of fact numbered XI, that the plaintiff did not act promptly and was guilty of laches and unreasonable delay, are disapproved.