Marden v. Dorthy

• Decision Date: 03 October 1899
• Citation: 160 N.Y. 39,54 N.E. 726
• Parties: MARDEN v. DORTHY et al.
• Court: New York Court of Appeals Court of Appeals

160 N.Y. 39

54 N.E. 726

MARDEN

v.DORTHY et al.

Court of Appeals of New York.

Oct. 3, 1899.

Appeal from supreme court, appellate division, Fourth department.

Action by Hannah Jane Marden against Ella M. Dorthy, Hiram L. Barker, and others. From a judgment of the appellate division affirming a judgment for plaintiff (59 N. Y. Supp. 1109), defendants appeal. Affirmed.

Gray and Bartlett, JJ., dissenting.

David Hays and John Van Voorhis, for appellants.

Theodore Bacon, for respondent.

O'BRIEN, J.

The plaintiff in this action invoked the jurisdiction of a court of equity to cancel certain instruments purporting to be conveyances of real estate, which she alleges are fictitious and void. It appears from the allegations of the complaint that at the time of the transactions stated therein, and for many years prior thereto, the plaintiff was the owner and in possession of the dwelling house and lot where she resided and still resides. The relief demanded is that three written instruments of record purporting to affect her title to the property be declared void and canceled. It is charged that the three instruments were fictitious and fraudulent. They were described as purporting to be (1) a deed bearing date, and purporting to have been executed and acknowledged, on the 31st day of October, 1892, and recorded December 12, 1892, from the plaintiff to her daughter, the defendant Ella M. Dorthy, the wife of the defendant John F. Dorthy; (2) an instrument purporting to be a mortgage, covering this house and lot, made by the defendant Ella M. Dorthy and her husband to the defendant the Monroe County Savings Bank, for $5,000, bearing date May 6, 1893, and recorded May 8, 1893; (3) an instrument purporting to be another or second mortgage on the same premises, made by the same parties, bearing date and recorded November 19, 1894, to the defendant Hiram L. Barker, to secure the payment of $1,300. It is alleged that on the 2d day of April, 1895, the savings bank commenced an action to foreclose the mortgage first mentioned, in which action a notice of pendency was filed. It does not appear that the plaintiff was made a party to that action. The present action was commenced about a month after that by the bank, and the plaintiff avers that she never executed or delivered the paper purporting to be a deed to her daughter; that she never acknowledged it, and never saw or heard of it until a few days before she instituted this action. It is further stated that she never knew or heard of the two mortgages above described until the same time, and that the three instruments were absolutely and wholly fictitious and fraudulent. These vital allegations concerning the execution of the deed and the execution of the two mortgages were denied by the answers of the several defendants. The issues in the case, important as they certainly appear to be, were all issues of fact, and presented nothing but questions of fact for trial. The decision and findings of the trial court were in favor of the plaintiff, and the three instruments were set aside. It is distinctly found that the plaintiff never executed or acknowledged the deed; that she never knew of its existence until the time above stated; that it was never delivered to her daughter; and that the latter never knew of its existence until the time it was discovered upon record by her mother, the plaintiff, just before the commencement of this action. Moreover, it was found that the certificate of acknowledgmentattached to the instrument first described was false, and that the signature of the notary, though genuine, was obtained in some way not appearing, but without any acknowledgment by the plaintiff to the officer or any one else. These findings, having been unanimously affirmed at the appellate division, are decisive of this appeal. Even if they were not so well sustained by the proofs in the case as they appear to be, the result, so far as this court is concerned, would necessarily be the same, since we are not permitted to question them, or even look into the evidence upon which they are based. The jurisdiction of this court is limited to questions of law, and in the present case, the findings having been affirmed in the court below in a unanimous decision, we must assume that they are sustained by evidence. Since the adoption of the present constitution, the question whether a finding of fact, or a verdict upon issues of fact, is sustained by evidence, though in its very nature one of law, is not reviewable here, when the court below has decided unanimously that the judgment should be sustained. This one question of law has, therefore, in such cases, been withdrawn from the cognizance of this court, as well as all questions of fact. We are not at liberty to disturb a judgment in such a case by giving to the findings of fact a strained or unwarrantable construction, any more than we are to set them aside upon a direct review. We must accept the findings as they are in their fair scope and meaning, without adding to or taking anything from them, and, applying them to the case, the only question that can arise is whether they support the legal conclusions drawn from them by the courts below. These propositions would be quite sufficient to dispose of this case, but nevertheless the learned counsel for the defendants contend that upon these findings the judgment should have been in their favor. It is quite obvious that the argument in support of this contention not only ignores the conclusive character of the findings as made, but assumes other facts by way of defense not found or even alleged. The decision of the courts below was in favor of the plaintiff generally, and hence we are bound to assume, not only that all facts alleged by the plaintiff are sustained by evidence, but that all facts alleged by the defendants by way of defense, not found, have been rejected or expressly negatived. The constitution and the statute, which declare that no unanimous decision of the appellate division that there is evidence supporting or tending to sustain findings of fact shall be reviewed in this court, apply not only to the facts affirmatively stated in favor of the successful party, but to those expressly or impliedly negatived against the party appealing. Szuchy v. Iron Co., 150 N. Y. 219, 44 N. E. 974;Trustees v. Ritch, 151 N. Y. 282, 45 N. E. 876. It is quite important, therefore, in view of the contention in behalf of the defendants, to state with more particularity just what facts have been found for the plaintiff, and what facts relied upon by the defendants have been negatived.

The most important finding for the plaintiff is the fourth, the first paragraph of which is in the following words: ‘Fourth. That the plaintiff never executed or acknowledged the said instrument, and never knew of the existence thereof, until some time in the month of April, 1895, when a rumor came to her that such an instrument had been made, which was confirmed by an examination of the record thereof, in the said Monroe county clerk's office, made by her on or about the 23d day of May, 1895. That, although the signature affixed to said instrument is genuine, the plaintiff signed her name to the paper upon which said instrument was written without any knowledge or information that the paper was a deed of her said premises, or that it was an instrument which in any manner affected her interest in said premises. The said plaintiff never at any time had any intention of selling, conveying, or incumbering her said premises, and her signature to said paper writing, purporting to be a deed of her said premises, was procured by the defendant John F. Dorthy by some trick or artifice perpetrated by him in some way or manner which does not appear and is unknown to the plaintiff.’ The finding then proceeds to state: ‘That said plaintiff never acknowledged the execution of said instrument in any manner, and never appeared before the officer whose certificate of her acknowledgment is affixed to said instrument for the purpose of acknowledging the execution thereof. That the signature to said certificate of acknowledgment is genuine, but the same was in some manner obtained by the said defendant John F. Dorthy, in what way does not appear, but without any acknowledgment by the plaintiff to the said officer, and without her authority given in any manner whatever. That said instrument was never delivered to the defendant Ella M. Dorthy, and she never authorized any one to receive the same for her, and no consideration for or on account of said instrument ever passed between the plaintiff and the said defendant Ella M. Dorthy, or between the plaintiff and said defendant John F. Dorthy. The said defendant Ella M. Dorthy never had any knowledge of the existence of the said pretended deed of the plaintiff to her.’

It would seem to be a difficult problem which the learned counsel for the defendants have assumed to elucidate, since it is nothing less than an effort to show that their clients, and expecially the bank, have become vested with an interest in the plaintiff's real property under what they call a deed, which, it is conclusively settled, the plaintiff never executed, acknowledged, or delivered. It must be admitted that to sustain such a position requires both courage and ingenuity, and, accordingly, they have with commendable industry constructed an argument based upon three propositions of fact: (1) That, although the plaintiff never intended to sign a deed, and did not know that she had, her genuine signature appearing on the paper having been procured by some trick or artifice, yet it was the result of negligence on her part; (2) that the defendants holding mortgages are bona fide purchasers, without notice or knowledge of the plaintiff's rights; (3) that the plaintiff is estopped by the spurious deed, and the false record of the same in the clerk's office, from raising any question against the validity...