Butler v. Viele , 44 Barb. 166 ( 1861 )

By the Court, J ames C. Smith, J.

It seems to me very clear, upon the plaintiff’s own showing, that he is not entitled to the relief sought by this action. The most favorable light in which his claims can be considered is to regard him as a purchaser for value and in good faith, without notice of the deed to Viele. Thus regarded, he acquired by his deed from Mr. Judd, the purchaser at the foreclosure sale, the title which Mrs. Card, the mortgagor, had before she gave the mortgage. (Smith v. Gardner, 42 Barb. 366, 367, and authorities cited by Daniels, J.) The title of Mrs. Card was superior to that subsequently acquired by Viele ; for although her mortgage Avas unrecorded, the plaintiff proves, without dispute, that Viele purchased with actual notice of the mortgage. Against this notice, the registry of his deed was of no avail. (9 John, 163. 2 John. Ch. 603. 6 Wend, 213.) As the defendant claims under Viele, the plaintiff clearly has the superior legal title. Besides, he is in possession, and it does not appear that the defendant has attempted to disturb him. If she should bring an action to recover the possession the facts shown by him would constitute a complete defense at law. Under these circumstances, it is obvious that the plaintiff has not been damnified. It seems equally obvious that it is not a case in Avhich he can call for the interposition of a court of equity, quia timet. The superiority of his legal title can admit of no doubt. But however that may be, it is enough to say that his complaint does not ask for relief on that ground. The gist of the cause of action alleged in the complaint, and which the palintiff's counsel claims the eiddence establishes, is that the deed from Mrs. Matthews to Yiele is void for fraud on the part of the grantee, and that the plaintiff has succeeded to the title of Mrs. Matthews, and to her rights in respect to the land; in other words, that as the assignee of Mrs. Matthews he may maintain an action to cancel the deed, on the ground that she was induced to execute it by fraud on the part of the grantee. In this view of the case, he is met at the outset by the difficulty that no fraud in fact is alleged or proved. The general allegation in the complaint, that the grantee procured the deed by “false and fraudulent representations and practices, and by undue and improper influences,” is insufficient, without stating the nature of the alleged representations and practices or influences. The burden of charging as well as proving fraud is on the party alleging it; and while it is not necessary or proper that he should spread out in his pleading the evidence on which he relies,- he must aver, fully and explicitly, the facts constituting the alleged fraud; mere conclusions will not avail. Hot only . does the complaint fail to allege actual fraud, but the referee has not found it, and none is proved. The plaintiff relies, however, upon having shown constructive fraud, in view of the relation of client and counsel which existed between the parties to the deed. This, the parties seem to concede, is a question of law, and the referee has so treated it, and has found as a conclusion of law that the deed was not jorocured fraudulently or unduly, but was received by Mr. Viele for the purpose of aiding and helping Mrs. Matthews to keep the premises. This he was to do by executing a mortgage thereon to her, to secure the price he agreed to pay, therefor, which was $800. This conclusion, I think, is correct, and if Mrs. Matthews has any remedy it is by enforcing a specific performance of the agreement to execute a mortgage.

There is another consideration which in. this case is fatal to the plaintiff's motion. If the plaintiff stands in the place of Mrs. Card, the original mortgagee, having a title superior to that of Yiele, it is obviously immaterial to him whether or not Yiele practiced a fraud on Mrs. Matthews, in procuring the deed, or whether or not he has performed his agreement with her, to execute a mortgage. But if, as he now claims, he is the assignee of Mrs. .Matthews in'respect to the right of action against Yiele, I think Mrs. Matthews is not a competent witness in his behalf, to testify to the transaction between herself and Yiele personally respecting the execution of the deed; and the objection to that effect, taken by the defendant, before the referee, should have been sustained. (Code, § 399.) If that evidence were stricken out, there would be none remaining, tending to establish even a constructive fraud; and as the case now appears, the plaintiff would fail for that reason, upon his own theory of the action.

[Monroe General Term, December 5, 1861.

The judgment should be affirmed.

Judgment affirmed.

JE. Darwin Smith, J. C. Smith, and Johnson, Justices,]