79 N.Y. 541, Mutual Life Ins. Co. v. Hunt

Citation:79 N.Y. 541
Party Name:THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent, v. CAMILLA HUNT, a lunatic, et al., Appellants.
Case Date:January 13, 1880
Court:New York Court of Appeals
 
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Page 541

79 N.Y. 541

THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent,

v.

CAMILLA HUNT, a lunatic, et al., Appellants.

New York Court of Appeal

January 13, 1880

Submitted Dec. 19, 1879.

COUNSEL

Robert P. Harlow, for appellants. The inquisition is prima facie proof of insanity during the period of time covered by it, and during every part of such period. (Greenleaf on Ev., vol. 1, § 556 [Redfield's 12th ed.]; Van Dusen v. Sweet, 51 N.Y. 381; Hart v. Deamer, 6 Wend., 497; Hicks v. Marshall, 8 Hun, 327.) It is presumptive proof against all persons, including those not parties or privies thereto. ( Wadsworth v. Sharpstein, 8 N.Y. , 392; Goodell v. Harrington, 3 T. & C., 345.) It threw the burden on the plaintiff to prove the sanity of the mortgagor. ( Goodell v. Harrington, 3 T. & C., 345.) The plaintiff is bound to prove that the mortgagor was sane at the very time the mortgage was given. ( Jackson v. Van Dusen, 5 J. R., 159; Attorney-General v. Parnther, 3 Bro. Ch. R. [ Am. ed., 1844], 441, 443, 445; White v. Wilson, 13 Ves., 88; Waring v. Waring,

Page 542

6 Moore [Privy Council], 341; S. C., 12 Jurist, 947; Hall v. Warren, 9 Ves. Jr., 611; 1 Story's Eq. Jurisp. [12th ed.], 219, § 222; Haviland v. Hayes, 37 N.Y. 33; Sheldon v. Hudson R. R. Co., 29 Barb., 226.) The burden is on the plaintiff to show that the corpus of the lunatic's estate was swelled by the loan. ( Lincoln v. Buckmaster, 32 Vt., 652.) In dealing with any person it is the duty of both contracting parties to use care. They deal at their peril. ( Wadsworth v. Sharpstein, 8 N.Y. , 393; Seaver v. Phelps, 11 Pick., 304.) The plaintiff could not, by paying a judgment against Miss Hunt, or by paying taxes on her property, without her request or a subsequent promise to repay, constitute themselves in any sense her creditors. ( Beach v. Vandenburg, 10 J. R., 361; Wallkill v. Overseers of Mamakating, 14 Id., 87; 2 R. S. [ Banks' 6th ed.], 1094, § 17.) The mortgage was wholly void under the Revised Statutes. (2 R. S. [ [Bank's 6th ed.], 1094, § 17; Ingraham v. Baldwin, 9 N.Y. , 45; Van Dusen v. Sweet, 51 Id., 381; Dexter v. Hall, 15 Wall., 9.) Even if the mortgage is only voidable, no action is necessary to avoid it. (Story's Eq. Jur., vol. 1, p. 224, § 329, and citing Jacobs v. Richards, 5 De G. M. & G., 55.) Even if an action is brought, it is not necessary, in order to maintain it, to tender, or pay back, the consideration. ( Gibson v. Loper, 6 Gray, 279.)

Winchester Britton, for respondent. The finding of the justice at Special Term, that the...

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