Levine v. O'Malley , 33 A.D.2d 874 ( 1969 )

Order reversed, without costs, motion denied and cancellation of notice of pendency annulled. Memorandum: The dismissed third cause of action in the second amended complaint alleges in substance that the codefendant, Mrs. O’Malley, was incompetent at the time (April 10, 1968) that she executed a deed conveying realty to respondent, 2380 Delaware, Inc., which property, plaintiff alleges, the codefendant had previously contracted to sell to him. The ultimate relief sought in the pleading is a declaration that the deed be declared a nullity and that the codefendant be compelled to perform specifically the previously made contract between plaintiff and the codefendant for the purchase and sale of the same realty. The general rule is that a deed made by one who is mentally incompetent, although not so adjudicated, is voidable, subject to certain conditions, but the instrument is not subject to avoidance at the suit of the grantee who is sane. (27 N. Y. Jur., Incompetent Persons, §§ 52, 53; 41 Am. Jur. 2d, Incompetent Persons, § 92.) Proof, however, that a grantor was incompetent at the time of executing a deed may establish ground for cancellation of the instrument as being a cloud on title to the property (44 Am. Jur., Quieting Title, § 21; 48 N. Y. Jur., Quieting Title, § 15; Ann. 78 A. L. R. 24, 259). Plaintiff, a contract vendee was vested with equitable title to the realty (62 N. Y. Jur., Vendor and Purchaser, § 93), and has standing to seek such relief although he has neither actual nor constructive possession of the realty (48 N. V. Jur., Quieting Title, § 8). All concur, Moule, J. not participating. (Appeal from order of Erie Special Term granting motion to dismiss third cause of action.) Present — Del Vecchio, J. P., Marsh, Gabrielli, Moule and Bastow, JJ.