Marden v. . Dorthy , 160 N.Y. 39 ( 1899 )

It appears to me there are three fundamental propositions upon which the law is well settled that stand in the way of a reversal.

This case was tried before the court, who makes specific findings of facts and conclusions of law. The judgment of the Special Term was unanimously affirmed in the Appellate Division. Under the Constitution this settles the facts to be as found. The trial court found that the plaintiff's signature to the deed was procured by 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." There is no finding that she was negligent, and I do not understand that we now have the power to find negligence on her part. If negligence is to be inferred from the facts here found, it must of necessity be inferred as a matter of law in every case where the signature of one person is procured through trick or artifice, no matter what the condition, whether aged or blind.

In the second place, I do not understand the facts as found to constitute an estoppel. The plaintiff's signature to the deed was procured through some trick or artifice, she not knowing that she was signing a deed. In order to constitute an estoppel the act must be voluntary or intended. If a highwayman should point a loaded revolver at the head of a person and compel the signing of an instrument through fear, such person would not be estopped from afterwards alleging the fact that his signature was procured through duress, and I see no reason why the same principle should not apply where the signature is procured through fraud, trick and artifice. In Trustees v. Smith (118 N.Y. 634-640) it is said, that it is a voluntary act calculated to mislead and which actually did mislead that constitutes an estoppel. In Barnard v. Campbell (58 N.Y. 73) ALLEN, J., in speaking upon the subject of an estoppel says: "He must have parted with possession of his property with intent to pass the title to the wrongdoer, thus giving him the apparent right of disposal." In Wilcox v.Howell (44 N.Y. 398-402), in speaking of the doctrine of estoppel, EARL, C., says: "It would be carrying this doctrine to a preposterous extent to hold that a party is estopped from claiming that the very instrument claimed to estop him was obtained from him by fraud." In Henry v. Carson (96 Indiana, 412) it was held that a deed never delivered, but obtained without the knowledge or consent of the grantor, does not divest the grantor's title, and a subsequent purchase from the grantee without notice for value will not be protected. (See, also,Ford v. James, 4 Keyes, 300; Rapps v. Gottlieb, 142 N.Y. 164; People v. Bank of North America,75 N.Y. 547; McCaskill v. Conn. Savings Bank, 60 Conn. 300;Tisher v. Beckwith, 30 Wisconsin, 55; Ogden v. Ogden, 4Ohio St. 183; Brant v. Virginia Coal and Iron Co.,93 U.S. 326; Article by Thomas N. Cooley, 4 American Bar Association Reports, 199.)

Finally, I do not understand that an innocent purchaser or mortgagee under the Recording Act gets a better title than he otherwise would have acquired had it not been for the provisions of the act, except in one instance, and that is, a failure to comply with the statute in having a deed or mortgage recorded so as to operate as a protection to innocent purchasers and mortgagees. The Recording Act, as I understand the authorities, never was intended to be a protection to innocent purchasers against theft, forgery, fraud or duress. (Code C.P. section 936;Ritter v. Worth, 58 N.Y. 627; Lawrence v. Conklin, 17 Hun, 228; Taylor v. Davis, 72 Missouri, 291; Gould v.Wise, 97 California, 532; 2 Jones on Real Property, section 1256, and authorities above cited.)