#### Elizabeth Goodyear and Ano., Adm’rs, etc., of Peter La Tournette, Deceased, App'lts, *v.*John B. Adams *et al.,*Resp’ts.

*(Supreme Court, General Term, Fourth Department,*

*Filed May 12, 1889.)*

1. Deed—When void because of grantor’s unsoundness of mind.

Evidence tending to show that a grantor, at the time he executed a deed of land, was of unsound mind; that he was an old man, had been sick for some time previous, and died soon after the date of the deed; that hi» mind was impaired; that he was unconscious most of the time; that he was riot able to help himself or appreciate his personal wants, nor engage in business transactions, will warrant a finding that he was of unsound mind, and the deed executed by him und.r such circumstances is void.

2. Same—What facts necessary to be shown to sustain deed otherwise INVADID.

This was an action brought to foreclose a mortgage. The defendants set up in their answer that they own the premises, deriving their title under the will of one Asa K Adams, who derived his title from the will of one Joshua Adams: that the deed under which the mortgagor claimed, was a forgery and procured through the exercise of undue influence, the grantor being cf unsound mind. Affirmative relief was demanded, that the complaint be dismissed, and that the defendants have judgment cancelling the mortgage as a cloud on their title. *Held.,*that it was sufficient *32for the defendants to show in the first instance the fact of unsoundness, and it was then incumbent on the plaintiff to show the facts necessary in equity to sustain the deed.

S. Same — Fraud—Existence oe—When important to rebut—What' equities.

*Held,*that the question is not whether the plaintiff’s testator took the mortgage in good faith and without actual or constructive notice of the invalid deed, but whether the deed which was found to have been obtained by fraud and without consideration, and which was consequently invalid in law, could in equity stand. That the defendants had a right to rest on the allegation and finding of unsoundness, and that the existence of fraud was then only important to rebut the equities that might be claimed to sustain the deed; that in this regard the plaintiffs would have no greater rights than the mortgagor, the rule in the case of instruments sought tó be set aside on the ground of fraud, not being applicable.

4. Error—When harmless.

An error which is not material and does not appreciably affect the result is harmless.

Appeal from a judgment, entered upon the report of a, referee, dismissing the complaint and adjudging that the mortgage described in the complaint was null and void, a cloud on defendants’ title, and directing its cancellation.

On the 31st March,. 1879, the defendant, Joseph P. Adams, executed and delivered to plaintiff’s testator a mortgage for él, 600, on the undivided half of 325 acres of land in the town of Barker, Broome county. This mortgage was given to cecure a loan then made for its amount, and was recorded on the 8th April, 1879, and this action is brought to foreclose it. The defendants who answer, set up in substance that they own the premises, deriving title under the will of Asa 3L Adams, who derived his title from the will of Joshua Adams; that the mortgagor, Joseph P. Adams, claimed under a deed, purporting to have been made by Joshua Adams on 10th February, 1869 ; that this deed was a *forgery,*was never executed or delivered by said Joshua ; that he was at that time of unsound mind and did not possess sufficient mental capacity to make said deed, or to .attend to any business whatever. "Affirmative relief was demanded, that the complaint be dismissed and that defendants have judgment, cancelling the mortgage as a cloud on their title.

A reply was put in. On the trial the contest was over the validity of the'deed of 10th February, 1869.

It appeared that for some time prior to 1869, the premises were owned and occupied by Joshua and Asa K. Adams as tenants in common. Joshua died on the 18th March, 1869, leaving a will, dated November 13th, 1866, which was probated June 11th, 1869, and which gave all his property to his brother, Asa. The latter continued to live on the premises where he died, in 1880, leaving a will, bearing date April 16th, 1878, and probated 25th April, 1881, and which devised the premises to the answering defendants.

On the 25th of February, 1879, the mortgagor placed on *33record a quit claim deed, dated February 6, 1869, purporting to have been executed to him by Joshua Adams, and to have been acknowledged before C. B. Miller, then a justice of the peace, on the 10th of February, 1869, and to, convey for the consideration as therein expressed of one dollar and services rendered at divers times, the undivided half of said premises, and also an undivided half of other forty acres, which had been in fact conveyed by Joshua to a railroad company in 1854, and in which he had since no interest or possession.

The referee found that the name “ Joshua Adams,” written opposite the seal was not the signature of said Joshua Adams, was not his handwriting, and was not placed there by his consent or direction or authority, and that the name so written, so far as it purported to be the genuine signature of Joshua, was a forgery; that the name “0. B. Miller ” written, upon the deed after the form of acknowledgment, was the signature of said C. B. Miller, and written there by him; that on the 10th of February, 1869, and for some time prior thereto, said Joshua Adams was feeble in body and mind, and was mentally unsound and incompetent to, and incapacitated from entering into any contract, and from understanding the nature or effect of a deed, and had not sufficient intellect, capacity or understanding to know or appreciate the nature, extent or value of his property, nor the persons who were or should have been the natural objects of his bounty, and who should be provided for in any voluntary disposition of the same; that he had no knowledge or understanding that he, was conveying his interest in the lands described in said deed, and had no intention of parting with his title to the said lands, and never understood at the time, or thereafter, that Joseph F. Adams had or claimed to have any interest in said lands under said deed or otherwise; that said Joshua Adams never signed, a'cknowledged or executed said deed, or delivered the same to said Joseph P. Adams; that the possession of said deed by said Joseph P. Adams, with the signature of O. B. Miller thereon, was obtained by fraud and without the knowledge or consent of said Joshua Adams, and that there was no consideration from said Joseph P. Adams to said Joshua Adams to support said deed.

*8. Mack Smith,*for app’lts; *8. C. Millard,*for respt’s.

Merwin, J.

One of the issues presented by the answer was whether Joshua Adams, on the 10th February, 1869, was of unsound mind. The referee found he was, and this finding is claimed to be unsupported by the evidence. Mr. Adams was an old man, had been sick for some time, and died soon after the date of the deed. There is evidence *34tending to show that in and from the fall previous, hie mind, was impaired; that he was unconscious much of the time, was not able to help himself or appreciate his personal wants, was not able to engage in business transactions, could not talk understandingly. The testimony of those who had the care of him to a considerable extent was produced, and the surrounding circumstances shown. The question of unsoundness was one of fact. The conclusion, of the referee was, I think, warranted by the evidence.

In *Van Deuzen*v. *Sweet*(51 N. Y., 378) it was held that a. deed executed by one *non compos mentis*is absolutely void, and that, in a law action to recover possession of real property claimed by a defendant under such a deed, the fact of the incapacity of the grantor may be shown by the plaintiff, to defeat such claim, although no fraud is alleged and such incapacity had not been legally or judicially determined at. or before the execution of the deed. This case does not appear to have been overruled.

In *Riggs*v. *American Tract Society*(84 N. Y., 330) the complaint,-in substance, alleged that Riggs, the plaintiff’s; testator, was of unsound mind, and while in that condition transferred to defendant, by gift or contract, divers sums of money, which-it still held and refused to return. It was held that a good cause of action was stated, and that the contract could be rescinded, and that if the defendant sought to maintain the contract on the ground that it was made in good faith for the benefit of the lunatic without notice of incapacity, and, so far performed that if rescinded, the party executing cannot be jdaced *in statu*quo, these facts must be alleged and proved by the defendant.

According to the logic of the *Riggs Case,*it was sufficient for the defendant in the present case to show in the first instance the fact of unsoundness. It then was incumbent on the plaintiff to show the facts necessary in equity to sustain the deed. These equitable rights depended on the transaction as it occurred between Joshua Adams and Joseph P. Adams, the grantee. If was not shown that the deed was for the benefit of Joshua, or was taken in good faith or for adequate consideration. On the contrary, it was found by the referee that it was obtained by fraud and without consideration, and the evidence was sufficient to support these findings. The question was not whether the-plaintiff’s testator took the mortgage in good faith and without notice, actual or constructive, of the invalid deed, but. whether the deed, invalid at law, could in equity stand. The defendants have a right to rest on the allegation and finding of unsoundness, and if so, the existence of fraud is. only important to rebut the equities that might be claimed to sustain the deed. In this regard, the plaintiffs would, have no greater rights than the mortgagor. The rule m the case of instruments sought to be set aside on the ground, of fraud would not apply.

*35In this view of the case it does not become important to determine whether, as claimed by plaintiff upon the evidence, it is to be presumed, from the genuineness of the signature of the justice, that the deed was acknowledged by the grantor, and delivered. Assume that was the case, it does not dispose of the issue as to unsoundness, so it may be, as claimed by plaintiffs, that the possession of Asa K. Adams was not of such a character as to necessarily be inconsistent with the claim of Joseph P. Adams to an undivided one-half, and that, therefore, the mortgagee was not called on to inquire.

This is not necessary to determine, as the equities here do not depend on the dealings between the mortgagor and mortgagee, but on the dealings between the mortgagor and Joshua Adams, and from those dealings no equity appears, sufficient to sustain the deed.

It is further claimed by the appellants that the referee erred in not finding, as requested, that Asa K. recognized the conveyance in question. Assuming this was important *(Enders*v. Sternbergh, 2 Abb. Ct. App. Dec., 53), it was clearly a disputed question, depending upon the inferences to be drawn from the evidence, including some significant circumstances. The evidence is abundant to sustain the refusal of the referee.

There are no other exceptions as to findings, or requests to find, that are important to be considered.

Divers exceptions as to rulings on evidence were taken, but our attention is only called to the following: Upon the rebuttal, the defendant’s counsel asked a witness, in reference to an occasion in 1880 when Joseph P. Adams served on Asa K. Adams a notice of his ownership, and prohibiting the cutting of timber, whether Asa told Joseph on that occassion that he (Joseph) didn’t own a foot of the premises or the land. This was objected to by plaintiffs, but admitted, and the witness answered that he told him he didn’t own any of it. A similar question was asked two other witnesses in reference to another occasion about the same time, when the deed in question was read over, and a similar answer taken, over plaintiff’s objection. • Assuming this was objectionable, the matter was not important, inasmuch as Joseph P. Adams had previously testified without objection that Asa had said to him substantially the same thing. The error, therefore, if any, was not material and would not appreciably affect the result.

The foregoing considerations lead to the conclusion that the judgment should be affirmed, with costs.

Bardes, P. J., concurs; Martin, J., not voting.