This action was brought by the plaintiff, as sole heir at law of the deceased grantor, to set aside for fraud a deed executed on the 19th day of May, 1909, by William Todd and Annie E. Todd, the father and mother of this plaintiff. The grantees mentioned in this deed were Alpheus and Wilkie Todd, the nephews of William Todd. Prior to December 4, 1906, William Todd was a bachelor. On that date he married Annie E. Seabury, and the plaintiff is the child of the said William Todd and Annie E. Seabury. At the time of the marriage, William Todd was sixty years of age and Annie Seabury was about thirty-one years of age.
The farm in question, upon which William Todd resided, is situated on the Crompond road, which extends from Peekskill to Yorktown Heights. This farm contains eighty-seven acres and lies on both sides of the Crompond road. Forty-seven acres are south of the road and forty acres are north of the road. The farm house and other buildings are all located on the north of the Crompond road. The evidence discloses that, on the 10th day of November, 1906, a deed was executed by William Todd, unmarried, to defendants Alpheus Todd and Wilkie Todd, conveying this farm by a full covenant warranty deed. The consideration mentioned in this deed is one dollar and other good and valuable considerations. It was also shown that, at the time this deed was executed, Alpheus and Wilkie Todd executed a life lease to William Todd of that portion of the farm to the north of the Crompond road. This lease, however, was never recorded. William Todd nevertheless continued to occupy that portion of the farm with his wife, whom he married shortly after the deed was executed; and their daughter, the plaintiff in this action, was born there and lived with her parents on the farm until the death of her father, William Todd, in 1925. Shortly after this deed was executed, the city of New York began a proceeding to acquire by condemnation about five .and one-half acres of land for
McCord explained how tMs sum of $5,000 was arrived at, to wit, that upon computation it was found that tMs was substantially the amount that William Todd was entitled to as a life tenant of the farm at the time the award was made.
The trial court found as a fact that there was no consideration for tMs deed, and that the sum of $5,000 was part of the aqueduct award money to wMch William Todd was entitled.
This seems like rather a strange transaction, under the circumstances. The net result of the settlement was that William Todd had his life estate reserved in the deed rather than in a separate instrument; otherwise, there was no change whatever in the situation from that existing in 1906, when the first deed was given. The $5,000 paid was, as found by the court, the amount to which William Todd was entitled, and formed no consideration for the new deed. It is the contention of the plaintiff that tMs second deed was the result of fraudulent representations' made to William, Todd and Ms wife by Robert McCord and agreed to or acquiesced in by their own attorney, Wells; that the nephews feared that the first deed was fraudulent, as the court has held it to be, and were anxious to get a new deed in wMch William Todd’s wife should join; that the only reason which led William to execute tMs deed in 1909 was the belief on Ms part that, if he did not make tMs deed, the Todd boys had the power to put him off the farm and would do so. The trial judge made a finding that tMs representation was in fact made by Robert McCord, as attorney for the defendants. This find-mg is as follows:
“ 72. That after said demand for the reconveyance of the aforedescribed premises and the return of the aquedúct award of $5,500 had been refused by the defendants, WilMe Todd and Alpheus Todd and their attorney, Robert McCord, said Robert McCord as attorney for the defendants, with full knowledge of the fact that William Todd and Annie E. Seabury Todd were represented by an attorney, one Charles N. Wells, a local Justice of the Peace, represented to and advised said WiMam Todd and Annie E. Seabury Todd, Ms wife, that unless they accepted the sum of $5,000 wMch he had computed to be the amount of interest upon a life estate alleged to have been granted to said William Todd, that the defendants, Alpheus Todd and WilMe Todd would put said
There is evidence justifying this finding. The court also found that Robert McCord, as attorney for the nephews, with knowledge that William Todd had retained Attorney Wells, had numerous conferences with William Todd and his wife when Attorney Wells was not present, for the purpose of inducing William Todd and his wife to accede and acquiesce in the demands of Alpheus and Wilkie Todd; and the court also found that this deed, executed in 1909 by William Todd to the nephews, was without consideration. The court, however, did not make any finding or conclusion that this deed was fraudulent because of such representations. This evidently was because the court believed, as stated in the opinion, that if fraud induced the making of this deed in 1909, William Todd and his wife knew all about it. In this I think the trial court was in error. Of course, William Todd knew that he was giving a new deed in 1909, and that he was getting what was due him out of the aqueduct money; but he evidently believed that he was obliged to give this deed in order to save his life estate, and this representation, if made by McCord, was false, and his attorney, Wells, either was knowingly a party to this fraud or did not know any better. The evidence seems clear that William Todd believed that the advice given him in this respect was true, for he made no further move during his lifetime.
According to the testimony of the plaintiff and her mother, William Todd’s wife, they were always of the same opinion until a Mr. Kirk came to see them in 1930, representing the Westchester county park commission, for the purpose of purchasing the Todd farm for the commission; and at that time he informed Mrs. Todd that, according to the title reports, William Todd was the owner of the property and that she as the widow, and the daughter, would naturally succeed him upon his death to the ownership of the property. And Kirk testified to this effect, and said that at that time Mrs. Todd told him that she and her daughter did not own the property. However, after this conversation with Kirk, Martha, the plaintiff here, William Todd’s daughter, asked her mother what it was all about and it was then that Mrs. Todd told Martha all about the deed of 1906 and the deed of 1909, and the plaintiff testified that this was the first time that she ever heard that her father had given a deed of the property. When Mr. Erk called in 1930, the plaintiff and her mother were not living on the farm. They had moved off the place shortly after the death of William Todd in 1925, upon the demand of Alpheus and Wilkie Todd. Soon there
The trial justice based his decision mainly upon the ground that plaintiff’s cause of action, if any existed, was barred by the Statute of Limitations. He so states in his opinion, and as a conclusion of law the decision states that the plaintiff’s action is barred by the statute. In my opinion, the trial judge erred in this finding. The fraud here consisted in the false representation, made by McCord and apparently acquiesced in by Wells, that the nephews were in a position to and would put William Todd and his wife off the place if the deed of 1909 was not given. The evidence is sufficient to uphold a finding that they believed this advice to be sound'and acted accordingly, and that its falsity was not discovered until 1930, when plaintiff and her mother visited plaintiff’s present attorney.
Subdivision 5 of section 48 of the Civil Practice Act states:
“ 5. An action to procure a judgment on the ground of fraud. The cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the fact constituting the fraud.” (Weaver v. Haviland, 142 N. Y. 534; Gates v. Andrews, 37 id. 657; Sears v. Shafer, 6 id. 268; Decker v. Decker, 108 id. 128; Mason v. Henry, 152 id. 529.)
Nor do I see how it can be held that William Todd or the plaintiff here failed to exercise due diligence to discover the fraud. Why should not the advice given by McCord and confirmed by Wells be relied upon? William Todd, of course, was a farmer and knew little of law. It was natural and proper that he should rest on what his own lawyer told him. This plaintiff and her mother acted with dispatch when their suspicions were aroused by what they were told by Kirk, and it was at this time that plaintiff was first informed of the deeds of 1906 and 1909. It is only where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded that a duty of inquiry arises. (Higgins v. Crouse, 147 N. Y. 411; Baker v. Lever, 67 id. 304.)
It is suggested that, at most, this was a mistake of law on the part of William Todd — that is, it involved legal advice mistakenly given, and accepted by him — and that, for a mere mistake of law, equity will not reheve; but plainly there was more than a mistake of law involved in the transaction. There was also, if plaintiff’s evidence is to be believed — and the court evidently believed it — deceptive and unfair conduct on the part of McCord in giving the false advice. Under such circumstances, it has many times been held that equity will grant relief.
The first conclusion of law in the decision is to the effect that the plaintiff is not the real party in interest and cannot maintain this action in her individual name. The plaintiff here is t'he daughter of William Todd, and his sole heir at law. He died intestate. Any real property that he owned at the time of his death would have descended to his daughter. If the deed of 1909 is void, the title to this land remained in William and at his death went to his heir, the plaintiff in this action, and she could maintain the present action to recover the property which the nephews held by voidable conveyance. (Valentine v. Richards, 59 Hun, 619; affd., 126 N. Y. 272.) It must be remembered in this connection that plaintiff’s father, William Todd, died without discovery of the fraud, and so the cause of action did not accrue during his lifetime.
The respondents contend that the plaintiff is estopped from maintaining this action because she has failed to show that she tendered or made restoration of taxes paid by respondents. Plaintiff, however, has nothing in her possession to restore. The matter of taxes paid will be adjusted upon the accounting. It was shown upon the trial that, in 1926, Wilkie and Alpheus Todd conveyed the portion of the farm mentioned, lying south of the Crompond road, together with other property, to the defendant Peekskill Gardens, Inc. Plaintiff does not claim that she can recover this part of the farm, but demands an accounting from the nephews in respect thereto. This she is entitled to.
The judgment, in so far as appealed from, should be reversed on the law and the facts, with costs, and judgment directed for the plaintiff, with costs, setting aside the deed made by William Todd and his wife, Annie B. Todd, to Alpheus Todd and Wilkie Todd, bearing date the 19th day of May, 1909, excepting that portion of
Lazansky, P. J., and Scudder, J., concur; Hagarty and Cars-well, JJ., dissent and vote to affirm.
Judgment, in so far as appealed from, reversed on the law and the facts, with costs, and judgment directed for the plaintiff, with costs, in accordance with opinion. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings will be made in accordance herewith.
Settle order on notice.