Gilkinson v. Miller

Two question» of law are presented. First. Is I he cansí' of action barred by section 2028 of the New York Code of Civil Procedure? Second. Is it barred by the acceptance by the olaiutiff, while yet an infant, of the sum of .*$1,000 in full settlement of all claims against Elizabeth Shappo or her estate?

Section 2028 provides, in substance, that the title of a bona tide purchaser for value from the heir of a person who died seised of real property, shall not be affected by a devise of the property made by the latter, unless within four years from (ho testator's *134death, the will is admitted to probate or established by the judgment of a competent court. It is agreed on all hands that this section is applicable, provided the defendant was a bona fide purchaser. It is conceded in the brief submitted for the defendant, that he knew of Elizabeth Shappo’s will. He knew, therefore, or might have known, that the property which he was about to purchase had, in clear and explicit language, been devised by its owner to the plaintiff who was at that time an infant. In short, he knew that if the will was valid, the title was in the plaintiff and not in John A. Shappo. Knowing so much it was his duty to know more. He. could éasily have put himself in communication with the plaintiff. A single question addressed to her would have disclosed the entire situation. He chose not to ask it. He preferred to shut his eyes and take the risk, hoping that rights which had remained dormant so long, would continue to remain so. When the defendant took the deed, the plaintiff, and not Shappo, was the true owner of the property. The defendant was possessed of sufficient information at the time to put him on inquiry. He had but to ask and he would have learned the whole truth. His carelessness in this regard led him into the dilemma. The plaintiff has been guilty of no fault and she should not lose her property through the fault of others. The section of the Code in question, cannot be construed to protect one who had actual notice of a will conveying the property away from the heir at law.

The authorities which are controlling upon this court, seem very clear in holding, that the defendant was not a bona fide purchaser. In Brush v. Ware, 15 Pet. 93, the court, at page 112, say:

“The law requires reasonable diligence in a purchaser to ascertain any defect of title. But when such defect is brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny. He is a voluntary purchaser; and, having notice of a fact, which casts doubt upon the validity of his title, are the rights of innocent persons to be prejudiced through his negligence?”

See, also, Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862; Reed v. Gannon, 50 N. Y. 345; Ellis v. Horrman, 90 N. Y. 466.

The second of the above questions, must also be ruled in plaintiff’s favor upon the authority of Sims v. Everhardt, 102 U. S. 300, where the plaintiff not only gave a formal deed, but accompanied it with a written statement, that she was of full age at the time. She recovered, although she did not disaffirm her deed until nearly 21 years after she attained her majority, the supreme court observing:

“We think the preponderance of authority is that, in deeds executed by infants, mere inertness or silence, continued for a period less than that prescribed by the statute of limitations, unless accompanied by affirmative acts, manifesting an intention to assent to the conveyance, will not bar the infant’s right to avoid the deed.”

This case was much stronger for the defendant than the case at bar. Here there was no formal conveyance of the land and no adequate consideration. The paper relied on, is merely a release of claims against Elizabeth Shappo and her estate, it conveys nothing, it is a receipt. It was disaffirmed in about 13 years after the plain*135tiff bccamo of age. See. also, cases died in nole to Wells v. Seixas, 24 Fed. 82.

This cause, no matter how decided, is one of unusual hardship. This fact is fully recognized by the court. The law, imperfect and Inadequate as it is in such cases, aims to protect those who, in legal contemplation, are regarded as ignorant and helpless, rather than those who are fully able to protect themselves and whose misfortune may be imputed to their own want of care.

The plaintiff is entitled to the judgment demanded