Coffey v. Sullivan.

his letter to his father-in-law, and his subsequent failure to give that act any other color, was desertion, and so intended by him, and the use of a few mildly affectionate words in a letter cannot deprive his acts and previous words of their legitimate force.

We, then, have cessation of cohabitation; an intention in the mind of the defendant to desert, and a separation against the will of the petitioner, which, under the decisions in this state, are held sufficient to justify a decree for divorce upon the ground of desertion. Taylor v. Taylor, 1 Stew. Eq. 207; Sergent v. Sergent, 6 Stew. Eq. 204.

The petitioner has made out such a case as, under the statute and decisions in this state, justify a decree for divorce.

For reversal-THE CHIEF-JUSTICE, VAN SYCKEL, DIXON, GARRISON, GUMMERE, COLLINS, FORT, GARRETSON, HENDRICKSON, BOGERT, ADAMS, VREDENBURGH, VOORHEES, VROOM-14.

For affirmance-None.

CATHARINE COFFEY et al., appellants,

υ.

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JOHN H. SULLIVAN et ux., respondents.

Coffey v. Sullivan.

Held, also, that the conveyance could not, under the evidence, be sustained as a mortgage to secure debts, nor could it be supported upon the theory of a resulting or implied trust for the future care or support of the grantors, nor as a voluntary settlement from donor to donee.

2. Upon a sale of property, gross inadequacy of pecuniary consideration, joined with inequality in the position of the contracting parties, is a ground of equitable relief, and fraud will be presumed by the court if the circumstances and relations of the parties "either lend themselves to such presumption, or are without probative force sufficient to neutralize it."

3. A trust cannot be implied in favor of the grantor of land by deed operating under the statute of uses, the habendum clause declaring the use to be for the grantee.

4. An express trust, not manifested in writing, made by a grantee of a deed of conveyance of lands, in favor of the grantors, is void under the statute of frauds.

5. If, under the evidence, the conveyance must be regarded as a voluntary settlement from donor to donee, the burden of proof was cast upon the donee to clearly establish that the donor fully appreciated what he was doing, or at the least, in the doing had the benefit of independent and competent advice.

On appeal from a decree advised by Vice-Chancellor Stevens, who delivered the following opinion:

The evidence in this case on both sides is very meagre. The complainants, by their bill, attack a deed made by their father, James Sullivan, to his son John, on the ground that John procured it by fraud and undue influence. There is no affirmative evidence of either fraud or undue influence. The grantor, it is true, was about seventy-eight years old when he executed the deed, but the evidence, so far as it goes, shows that at that time he was an active old man, engaged in farming and capable of transacting business, whose mind did not become impaired until within a few months of his death. He died three years after the deed was made. Complainants do not show that John stood in any confidential relation to his father-that he acted as his agent or adviser-consequently the burden of proof is upon complainants to establish the fraud or undue influence they allege, not upon the defendant to show affirmatively that the deed was fairly obtained. Several of the cases cited do not apply for this reason. The case in hand appears to me to stand upon substantially the same footing as Le Gendre v. Goodridge,

Coffey v. Sullivan.

1 Dick. Ch. Rep. 420, and I will therefore advise a dismissal of the bill.

Mr. Alan H. Strong, for the appellants.

Messrs. Vail & Ward, for the respondents.

The opinion of the court was delivered by

VREDENBURGH, J.

This bill is filed by three of the four children of James Sullivan and Julia, his wife, to set aside a deed of conveyance of land, claimed to have been fraudulently obtained from their father by their other brother, John H. Sullivan. The deed is dated and was formally executed February 6th, 1896, by the father (who was seized of the fee of the lands), joined with the mother, who had an inchoate estate of dower therein. The father died intestate on January 6th, 1899, aged about eightyone years, and must have been, at the date of this conveyance, about seventy-eight years old; and the mother, who is still living and was then about eighty-two or eighty-three years of age, was, according to the uncontradicted evidence, feeble-minded or demented to such a degree as to have been incapable of intelligently transacting business. The mental capacity of the father, about the time of the execution of the deed, is in dispute under the evidence; two witnesses testified that, in their opinion, his mind was very feeble, and two witnesses swore, on the contrary, that, in their opinion, the condition of his mind was good. No witness has testified as to the father's mental condition referring to the precise occasion of either the signing or the acknowledgment of, or the delivery of, the deed. The deed is of the ordinary "bargain and sale" form under the statute of uses, without covenants of warranty, and conveys to John the title in fee-simple absolute to four lots of land situate in Rahway, New Jersey (the value does not appear), one of which embraces the homestead property, which had been the grantors' home for many years. It is established by the evidence, and is conceded in the case, that this deed conveyed away all of the lands owned by the father,

Coffey v. Sullivan.

and that his personalty was of trifling amount. No administration of it appears to have been taken out. The deed contains no power of revocation reserved by the grantors, nor any covenant or agreement by the grantee for the future care or support of the grantors in consideration for the grant. John did not, at any time, either before or after the transfer, consult with or inform his brothers or sisters concerning it, and, in fact, when asked about it by his sister on an occasion some time after the delivery of the deed to him, evasively denied that he had the property. The consideration recital of the deed is in the usual form, and recites that the grantors, "in consideration of the sum of one dollar to them in hand paid, have granted, bargained, sold and conveyed" to the grantee "and his heirs and assigns forever," the four tracts of land above referred to (describing them by their metes and bounds). There is no legal evidence in the case, other than this recital, that the grantors, or either of them, ever received any consideration money for this deed. The defendant (the only other party to the bargain and sale evidenced by this deed now alive and mentally capable of giving competent evidence as to any consideration agreed upon between them) has not been sworn as a witness. The bill prays answer without oath, and the statements of the defendant's unverified answer, in respect to any consideration, whether responsive or not to the bill, cannot, under the statute and our settled practice, be either regarded or received as evidence against the complainants. So far forth as this deed of "bargain and sale" rests upon a money consideration received, it must, under the evidence, be found and presumed that only the nominal sum of $1 was received for it by the grantors-a sum so grossly inadequate as, of itself, when viewed in the light of the circumstances and relations of the parties, to be a convincing proof of fraud or imposition. The rule adopted by Chancellor Vroom in the case of Executors of Wintermute v. Executors of Snyder, 2 Gr. Ch. 490, was that "if the inadequacy be such as to shock the conscience, it will amount to evidence of fraud and will be so considered," citing cases. 2 Pom. Eq. Jur. 927 states the principle as follows:

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Coffey v. Sullivan.

"Although the actual cases in which a contract or conveyance has been canceled on account of gross inadequacy merely, without other inequitable incidents, are very few, yet the doctrine is settled by a concensus of decisions and dicta that, even in the absence of all other circumstances, when the inadequacy of price is so gross that it shocks the conscience and furnishes satisfactory and decisive evidence of fraud, it will be a sufficient ground for canceling a conveyance or contract whether executed or executory; even then fraud, and not inadequacy of price, is the true and only cause for the interposition of equity and the granting of relief."

In the case of Gifford's Administrator v. Thorn, 1 Stock. 702, the principle was stated by Chief-Justice Green (sitting for the chancellor), with a modification, as follows: That "upon a sale of property gross inadequacy of price, joined with inequality in the position of the contracting parties, is a ground of equitable relief." See, also, Lundy v. Seymour, 10 Dick. Ch. Rep. 7; Weber v. Weitling, 3 C. E. Gr. 441. And in Phillips v. Pullen, 18 Stew. Eq. 836, the opinion of this court, delivered by Mr. Justice Garrison, recognizing that fraud in such cases is the true ground for the interference of equity, lays down the rule in this wise: "Fraud will be presumed from inadequacy of consideration, standing alone, if the inadequacy be so gross as to satisfy the court that it could have been brought about only by deceit or imposition, provided the circumstances and relations of the parties either lend themselves to such a presumption, or are without probative force sufficient to neutralize it." Testing the present transaction either by the rule as stated by Chancellor Vroom and Pomeroy, that fraud would be presumed from gross inadequacy of price alone, or by the later modifications announced in Gifford v. Thorn, supra, and by this court in the case of Phillips v. Pullen, just referred to, to the effect that the position, circumstances and relations of the parties are to be considered before the making of such presumption, this deed, so far as its validity depends upon the feature of bargain and sale, cannot be sustained. The parties to it did not occupy a position of equality. John lived within three or four blocks from his father, and had continual access to him; the other children lived at a distance, and only saw their parents occasionally. The father was, in some degree at least, under the weight of the evidence,