Brokaw v. Duffy

• Decision Date: 22 January 1901
• Parties: BROKAW v. DUFFY.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 391

59 N.E. 196

BROKAW

v.DUFFY.

Court of Appeals of New York.

Jan. 22, 1901.

Appeal from supreme court, appellate division, First department.

Action by Isaac V. Brokaw against Ellen Duffy. From an order of the appellate division (55 N. Y. Supp. 469) reversing a judgment in defendant's favor, she appeals. Affirmed.

Appeal from an order of the appellate division of the supreme court in the First judicial department, reversing a judgment entered upon the decision of the court after a trial without a jury. This action was brought by a vendee of real estate, under an executory contract, to recover the amount paid thereon in advance and for examination of title, upon the ground that the vendor could not fulfill her contract to convey because her title was not marketable. By a contract dated November 27, 1891, the defendant agreed, in consideration of $14,000, of which $500 was paid down, to convey the premises in question to the plaintiff by ‘a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to him the fee simple of the said premises free from all incumbrances and restrictions.’ The plaintiff was ready to fulfill at the time fixed for performance, but the defendant could not perform, because there was evidence of record tending to prove the insanity of her grantor, one Bernard McKenna, at the time of his conveyance to her, and for the further reason that the heirs at law of said McKenna had given notice of their intention to cause the conveyance to the defendant to be set aside on account of such insanity. In the decision of the trial judge, which dismissed the complaint, was the following: ‘It appeared on the trial that in examining the title plaintiff's attorney found a lis pendens filed in a proceeding entitled, ‘In the Matter of Bernard McKenna, an Alleged Lunatic.’ That proceeding had resulted in a finding by the sheriff's jury that Bernard McKenna was a lunatic and of unsound mind. This finding was vacated and set aside by order of the court, with leave to apply for a new commission. An application for a new commission was made and denied, and the lis pendens was ordered to be canceled, and thereupon was canceled. When the lis pendens was canceled it ceased to be a statutory notice to purchasers, and plaintiff's attorney in searching the title was not obliged to search for the papers in the proceeding. The contingency that a new commission might be applied for at a future time was of no importance. The plaintiff was bound to point out his objections to the title, and give proof tending to establish them, or to create such a doubt in respect thereto as to render the title unmarketable. The record title was perfect, and it was therefore incumbent upon the plaintiff to show by satisfactory evidence that the title was defective by proof outside of the record. This burden he has not sustained. There is no evidence before the court that Bernard McKenna was insane at the time he deeded this property to the defendant, nor sufficient to create a reasonable doubt as to his sanity at that time. The mere fact that an attorney notified plaintiff that he had been informed that McKenna was insane, and that suit would be brought to set aside the deed in case he completed his purchase, is not sufficient.' The plaintiff excepted to various portions of the decision, and among the rest to the part printed in italics, as well as to the direction for judgment dismissing the complaint upon the merits, with costs. The judgment entered accordingly was reversed by the appellate division by an order which did not state that the reversal was upon the facts. The defendant stipulated and appealed to this court.

VENDOR AND PURCHASER-RECOVERY OF EARNEST MONEY-MARKETABLE TITLE-NOTICE-FEAR OF LITIGATION-EVIDENCE.

1. Defendant's grantor, who was her brother, and was 90 years of age, conveyed land sold to plaintiff to defendant for a consideration of one dollar. An heir at law of the grantor caused an inquisition in lunacy to be issued, in which the jury found that the grantor was a lunatic; and the record showed that seven witnesses, three of them experts, had testified that he was insane. The court refused to confirm the verdict because it discredited some of the medical evidence, though it held the evidence ‘sufficient to make out a case.’ A new commission was denied on the ground that the court was without jurisdiction, because of grantor's residence, and a lis pendens was canceled from the record of defendant's title. The attorney for the heir at law told plaintiff that the title would be further litigated. Held, that defendant did not have a marketable title free from doubtful questions of law or fact, and not liable to be litigated, and hence that plaintiff was entitled to recover the amount paid on the purchase price. O'Brien, J., dissenting.

VENDOR AND PURCHASER-RECOVERY OF EARNEST MONEY-MARKETABLE TITLE-NOTICE-FEAR OF LITIGATION-EVIDENCE.

2. In an action to recover back money paid on a contract for the sale of land, on the ground that defendant could not convey good title, plaintiff introduced the record of a commission in lunacy which showed that seven witnesses, three of them experts, had testified that defendant's grantor was a lunatic, and set forth testimony as to specific acts of insanity, and showed a verdict that he was insane, which was not confirmed because the court discredited some of the medical testimony, though it held that the evidence was sufficient to make out a case. Held, that a finding by the trial judge that there was no evidence of insanity, and not enough to raise a reasonable doubt, was erroneous, whether considered as of law or of fact, as the evidence was sufficient to raise a reasonable doubt.

VENDOR AND PURCHASER-RECOVERY OF EARNEST MONEY-MARKETABLE TITLE-NOTICE-FEAR OF LITIGATION-EVIDENCE.

3. In an action to recover back money paid on a contract for the sale of land, on the ground that defendant could not convey a good title because of the insanity of her grantor, evidence of an agreement between defendant and the other heirs of her grantor whereby defendant, for one-fourth of the proceeds, was to join with them in conveying other land conveyed to defendant by the grantor, was admissible, as tending to show that defendant regarded the deed to herself as invalid, and voluntarily offered to deliver three-fourths of the property.

Michael J. Scanlan, for appellant.

M. S. Thompson, for respondent.

VANN, J. (after stating the facts).

The plaintiff was entitled to a marketable title free from doubtful questions of fact or law. Unless the defendant could convey such a title, it was impossible for her to perform her contract, and the plaintiff was entitled to recover the money paid thereon, and the expenses incurred by him in examining the title. ‘If the vendor of real estate under an executory contract is unable to perform on his part at the time provided by the contract, a formal tender or demand on the part of the vendee is not necessary in order to enable him to maintain an action to recover the money paid on the contract or for damages.’ Ziehan v. Smith, 148 N. Y. 558, 562,42 N. E. 1080, and cases cited.

Upon the trial there was no conflict in the evidence, and the following facts appeared without dispute: The defendant's grantor was Bernard McKenna, her brother, who was nearly 90 years of age, on the 22d of May, 1884, when, in consideration of one dollar, he conveyed to her four different parcels of land in the city of New York, including the premises in question. Both grantor and grantee resided in Ireland at the date of the conveyance, but before that the former had lived in this country for many years. Shortly after the plaintiff entered into the contract with Mrs. Duffy he procured a search upon the premises, and found a notice of pendency that referred to a record of an inquisition in lunacy, which disclosed that on the 24th of July, 1885, Mary J. McShane, a niece and heir at law of said McKenna, filed a petition in lunacy, alleging that he then was, and for about ten years had been, insane and incompetent to take care of his estate. The petition referred to the conveyance of May 22, 1884, from him to Mrs. Duffy, and alleged that at the date thereof he was insane and wholly under her influence and control. A commission was issued, a trial had, and on the 1st of December, 1887, the jury found ‘Bernard McKenna is a lunatic and of unsound mind, and that he has been in the same state of lunacy since October 26, 1881.’ Attached to the inquisition was the evidence upon which it was founded. Four lay witnesses, called by the petitioner, testified to irrational acts and declarations on the part of McKenna continuing from 1881 until the trial, and three expert witnesses called by her testified (one in answer to a hypothetical question, and the others as the result of personal examinations) that said McKenna was of unsound mind and incapable of managing his estate. One of the lay witnesses, who had known McKenna for 25 years while he lived in this country, saw him five times in the spring of 1885, when he was living in Ireland with Mrs. Duffy. He testified that he called upon him and said, ‘How do you do, Mr. McKenna?’ and that McKenna, pulling at his nose, replied: ‘I am not Mr. McKenna. Mr. McKenna is dead. I am not Mr. McKenna at all.’ After a while the witness said to him, ‘Mr. McKenna, you know you are McKenna,’ and he answered: ‘No; I am dead years ago. My face is dead. My head is dead. I am all dead.’ He then talked sensibly for a few minutes, but soon said: ‘What brought you to this country?’ and the witness replied, ‘I came here to see you.’ He then said: ‘Now, I will be dead to-morrow. Did you bring that flagstone from Thirty-Fifth street to make a headstone for me? Did you come without it?’ Occasionally he would talk lucidly about something that transpired years before in America, but would soon break out as follows: ‘I...