The findings of the Special Term that the deceased father of the parties orally agreed that, notwithstanding the deed to Mm conveyed the title to the property in fee, he would simply hold the property for life, that he would not incumber it or dispose *370of it, and that on his death he would by will or otherwise retransfer the property to his children, the grantors, are contrary to the evidence. Without discussing the validity of such alleged oral agreement, there is no evidence of any such agreement on his part, oral or otherwise. The finding that the children executed the deed to him on the faith of such an agreement, or under an oral understanding that they were to share the property equally upon the death of the father, is also contrary to the evidence. At the date of the deed the father was the owner of a fife estate in the property as tenant by the curtesy. On his death the title would vest in the four children. They voluntarily conveyed their interest in remainder to him, and it is now asserted that by oral agreement, upon which they relied, he was to reinvest them with the title on his death. The alleged oral agreement of the father and the children is opposed to reason. The lawyer who drew the deed and superintended its execution, called as a witness by plaintiff, was not questioned as to the existence of any such anomalous agreement by the grantee. The evidence that the children made any such oral agreement between themselves comes from interested parties and is extremely indefinite and unsatisfactory. Without an agreement by the father, the grantee, such agreement would in any case be nugatory and unenforcible. The allegation in the complaint that the appellant, nine years thereafter, fraudulently procured her father to convey the property to her, and the finding to that effect, are also unsupported by the evidence. The testimony of D’Agrosa, the lawyer who drew the deed, and Borgia, the friend of the deceased father, negatives such finding. We are of opinion that the judgment depriving the appellant of her property is wrong, and that it should be reversed and judgment directed in favor of the defendant, appellant.
The judgment, in so far as appealed from, should be reversed upon the law and the facts, with costs to appellant, and judgment directed for defendants Maria Barbello and John Borgia dismissing the complaint, with costs to appellant Maria Barbello. Findings of. fact made at Special Term contrary to this decision are reversed, also the conclusion of law of the trial justice. The findings of fact and conclusions of law requested by the appellant Maria Barbello and defendant Borgia are found by this court, with the exception of findings numbered 26th, 27th, 30th.
Kelly, P. J., Manning, Young, Kappeb and Lazansky, JJ., concur.
Judgment in so far as appealed from reversed as directed in opinion. Settle order on notice.