Boyd v. Boyd

• Decision Date: 02 October 1900
• Citation: 58 N.E. 118,164 N.Y. 234
• Parties: BOYD v. BOYD et al.
• Court: New York Court of Appeals Court of Appeals

164 N.Y. 234

58 N.E. 118

BOYD

v.BOYD et al.

Court of Appeals of New York.

Oct. 2, 1900.

Appeal from supreme court, appellate division, First department.

Action by David Boyd, individually and as administrator of Samuel Boyd, deceased, against Robert Boyd and others. From a judgment of the appellate division (47 N. Y. Supp. 522) affirming a judgment in favor of defendants, plaintiff appeals. Reversed.

Gray, J., dissenting.

Edward W. S. Johnston, for appellant.

Henry Daily, Jr., for respondents.

O'BRIEN, J.

This action was brought under section 1473 of the Code by the plaintiff, in his capacity as administratorand sole heir at law of a deceased person, who, it is alleged, was, at the time of his death, entitled to a sheriff's deed of certain real estate described in the complaint, and which had been sold by the sheriff on execution, and redeemed by the deceased as a junior judgment creditor. The relief prayed for is that the sheriff, who was made a party defendant, be adjudged to execute a deed to the plaintiff of the lands, and that a certain paper, purporting to be an assignment of the certificate of redemption by the deceased in his lifetime, which it is alleged is a false and forged paper, be adjudged to be null and void, and that a deed to the person named as assignee in the false paper, and by him to the other defendants, be declared fraudulent and void.

The controversy arises upon the following facts: On March 5, 1872, a judgment was recovered against the defendant Robert Boyd and another, at the suit of the people, as sureties upon a forfeited bail bond. The premises described in the complaint were sold upon execution issued on this judgment, January 11, 1873, the defendant Boyd then having the title. The sheriff issued a certificate to the purchaser, which was duly recorded. On the 9th of April, 1874, the premises sold were redeemed by Samuel Boyd, the deceased, as a judgment creditor of Robert Boyd, the owner, upon a judgment duly entered April 4, 1874, by payment of the purchaser's bid and interest. The usual certificate of redemption was delivered to the deceased by the sheriff, and thereupon he became entitled to a deed of the lands so redeemed, but died on the 16th of April, 1883, intestate, without having received any deed. The plaintiff alleges in his complaint that on April 2, 1883, the defendants Robert Boyd and Elise Boyd, his wife, and Joseph J. Carberry, conspiring together with intent to cheat and defraud the deceased, Samuel Boyd, who then held the certificate of redemption, and his heirs and legal representatives, of all their right, title, and interest in and to said premises so redeemed, and to a conveyance thereof from the sheriff, made or caused to be made, and did produce and utter as true, a false, forged, fabricated, and fraudulent paper writing, purporting to be an assignment of said certificate of redemption from said Samuel Boyd to the defendant Elise Boyd, wife of Robert Boyd; that this paper writing purported to have been executed by the deceased and witnessed by the defendant Carberry as a subscribing witness, but in fact was never so executed, and was in fact a forgery; that in pursuance of said conspiracy, and with the same fraudulent intent, the defendants Robert Boyd and wife and Carberry did, on the 26th of January, 1885, present this false writing, purporting to be an assignment of the certificate of redemption, to the sheriff, and caused him to execute and deliver to said Elise Boyd, as assignee of the certificate, a conveyance of the lands so redeemed, which, with the false writing above mentioned, was recorded in the clerk's office of the county. It is further alleged in the complaint that the defendants, with the same fraudulent intent and purpose, caused the defendant Elise to convey the lands to the defendant Carberry on September 7, 1885, by deed recorded December 3, 1885, and that with a like purpose and intent the latter conveyed to the defendant Robert Boyd by deed dated September 14, 1885, and recorded December 3, 1885. The latter was in possession of the premises at the time of the commencement of this action. It is quite apparent that the controversy turned upon the character of the paper, which purported to be an assignment by the deceased to Elise, the wife of Robert Boyd, of the certificate of redemption. If that was a genuine paper, the sheriff had already conveyed the premises to the party holding the certificate of redemption, and the plaintiff had no case. If, on the contrary, it was a false paper, never in fact executed by the deceased, neither that nor the conveyance based upon it constituted any obstacle to the plaintiff's right as administrator and heir at law of the deceased. The issue between the parties was therefore one of fact concerning the true nature of the instrument which purported to transfer to Elise all the rights of deceased under the certificate of redemption. The trial court determined this issue in favor of the defendants, and dismissed the complaint, and the judgment has been affirmed on appeal.

There was evidence before the trial judge tending to show that this was a false paper, but clearly it was not so strong or conclusive as to require him to find and decide that it was. The finding at the trial in favor of the defendants on the facts is conclusive on this court, and there is nothing before us but the questions of law raised during the trial by exceptions. In a case of this character we ought not to interfere with the judgment below for rulings at the trial which, though technically wrong, were immaterial, and could not, in any fair view of the case, have prejudiced the defeated party. But the exceptions appearing in this record raise important questions of law, which must have affected the whole course of the trial, and, as decided by the learned trial judge, must have operated to the prejudice of the plaintiff. This will plainly appear when we refer to some of the rulings, and have pointed out their bearing upon the merits of the case.

1. The plaintiff's counsel produced a paper purporting to be an assignment by the deceased of another certificate of redemption of other lands of Robert Boyd, sold upon execution, and redeemed by the deceased as a judgment creditor. This paper is dated the same day as the one in question in this action, is attested by the same subscribing witness, and proved in the same manner. The record contains photographic copies of both papers. It is evident that they were drafted by the same person, and the signature of the deceased to each is apparently in the same handwriting, and they differ in appearance only in the fact that the one so produced is left in blank for the name of the assignee to be inserted. The counsel also produced a judgment record of an action in the superior court of the city of New York, in which the defendant Robert Boyd was plaintiff, and the plaintiff in this action was the defendant in his individual and representative capacity. It appeared from the pleadings that Robert claimed the benefit of the assignment in blank of the certificate, and that he was virtually, under the assignment, entitled to the lands described in the same, and to the deed of the same, while the defendant in his answer insisted, as he insists in this case, that the deceased had never made any assignment of the certificate of redemption, and that the right to the deed was in him as the personal representative and heir at law of the deceased. It appeared from the findings of the court in the case that it was decided in the action that the deceased never signed or executed the paper, and that the signature purporting to be his was not genuine. The counsel offered the paper and the judgment record in evidence, but both were excluded upon the objection of the defendants, to which ruling an excepting was taken. The learned counsel for defendants attempted to justify this ruling upon the ground that the paper and the judgment roll in the former action related to another parcel of land redeemed by the deceased, and had no relation to the land in question. But the fact that the papers related to different parcels of land was wholly immaterial, since the competency of the proof offered did not depend upon the identity of the property described in the two papers, but upon other considerations. The proof, if admitted, would show, or tend to show, that a transaction precisely similar to that which is called in question in this action bwtween the same parties, or some of them, was tainted with the same vice which is alleged against the transaction involved in this action. It tended to prove that the defendants at least attempted, by means of false papers, made at the same time and in the same way, to transfer to themselves another portion of the estate of the deceased which the plaintiff represents. It is argued by the learned counsel for the plaintiff that the transaction excluded by the rulings of the court was proof of the conspiracy charged in the case at bar, and that the paper offered, purporting to have been executed by the deceased, was a proper standard by which to determine, under the statute, the genuineness of the signature to the paper which is the foundation of the defendants' title in this case.

It may be that the proof offered was admissible on one or more of the grounds thus urged, but we do not think it necessary to consider that feature of the argument, since we are of opinion that the question may be viewed in a broader light, and determined by a safer and more simple rule.

The paper purporting to be an assignment of another certificate of redemption held by the deceased, when taken, with the judgment record, tended to prove a contemporaneous fraud by the same parties upon the same estate, similar in all respects to the one which the plaintiff has assailed in this action. It was none the less a fraud upon the deceased and upon the plaintiff, because it also involved...