Moody v. Moody , 23 N.Y. Sup. Ct. 189 ( 1878 )

GilbKRT, J.:

This is ail action to remove a cloncl upon the plaintiff’s title to certain lands, by avoiding a conveyance to the defendant Samuel. Oil and before December 9, 1876, John Moody was the owner and in possession of the lands in controversy, and on that day he conveyed the same to the plaintiff. On the 31st of January, 1877, John Moody conveyed the same lands to the defendant Samuel. The latter conveyance was first recorded. After the conveyance to the plaintiff, John Moody continued to reside with her, on the premises conveyed, up to the time of the trial. One defense set up was that the conveyance to the plaintiff was procured by her by means of fraud and circumvention, and the defendant, by way of counter-claim, demanded an avoidance of such conveyance. Evidence to establish such defense was held to be inadmissible and excluded, and the defendants excepted.

I think that the evidence was competent. If the deed to the plaintiff was fraudulently obtained, it was a nullity, and gave to her not even a colorable title. The defendants’ title, therefore, was not affected by the provision of the Bevised Statutes respecting champerty. (1 B. S., 739, § 147.) That statute only avoids grants of lands which, at the time of the delivery thereof, are in the actual possession of a person claiming under a title adverse to that of the grantor. Assuming, as we must, in determining this question, that the deed to the plaintiff was void, her claim was not under an adverse title, but under no title at all. (Crary v. Goodman, 22 N. Y., 170; McMahon v. Allen, 35 id., 403.)

Whether the conveyance to the defendant Samuel, therefore, was voluntary, or for a valuable consideration, he had a right to institute a suit to set aside the deed to the plaintiff on the grounds set up by him without making the grantor a party. The right to set aside a conveyance on equitable grounds passes by grant or devise and descends to the heirs. Such right is incidental to the property conveyed. (Dickinson v. Burrell, 1 L. R. Eq. Cas., 337; McMahon v. Allen, 35 N. Y., 403.) It is a cause of action arising out of the transaction set forth in the complaint, and constitutes a counter-claim within the words of the Code of Civil Procedure. (§ 501.)

I entertain no doubt that the judgment is erroneous. It must therefore be reversed and a new trial must be granted, with costs to abide the event.

Barnakd, P. J., concurred; DticmaN, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.