Opinion
December 30, 1908.
Thomas J. Ritch, Jr., for the appellant.
Rowland Miles, for the respondents.
Judgment affirmed, with costs, on the opinion of Mr. Justice JAYCOX at Special Term.
WOODWARD, JENKS, HOOKER, GAYNOR and RICH, JJ., concurred.
The following is the opinion delivered at Special Term:
The evidence does not satisfy me that the title to this property was taken in the name of Sarah A. Satterly under any agreement or arrangement by which Charles A. Satterly could have compelled a conveyance to himself. There is no proof of any arrangement of that character. The proof, if it shows anything in that respect, shows that Charles W. Satterly placed the title in the name of Sarah A. Satterly to avoid the claims of another wife of said Charles W. Satterly who was then living. Under this agreement, if such it may be termed, Charles A. Satterly had no rights which equity would have enforced.
It is true the testimony indicates that Sarah A. Satterly at one time executed, or had prepared, a conveyance to Charles A. Satterly and a will to the same effect, but there is no claim or proof that the deed was delivered or that the title in any way passed by it to the grantee. The preparation, or even the execution, of the deed had no effect upon the title unless delivered if the grantee had no enforcible interest prior thereto in the premises. And if Charles A. Satterly had no enforcible interest any promise made by Sarah A. Satterly at that time, or any other time, was without consideration and cannot be enforced, even though by such promise Charles A. Satterly was induced to decline the conveyance. The declination of such conveyance furnishes no consideration for the promise to convey to some one else.
This action, as I view it, falls within the reasoning of McCartney v. Titsworth ( 119 App. Div. 547) and Fagan v. McDonnell, No. 1 (115 id. 89). The will, of course, could be changed at any time and only indicates the intention which she then had. The cases cited by plaintiff all uphold a parol agreement upon the ground that not to do so would allow a fraud to be perpetrated. I do not think it is true here. Certainly it is not if Charles A. Satterly had no enforcible interest in the premises.
The presumption would be that these services rendered to this aged lady, even though only plaintiff's stepmother, were gratuitous. Every conversation between parents and children under the circumstances here shown should not be construed as a contract. The testimony here is not of that clear and convincing character necessary to establish an agreement between Sarah A. Satterly and the plaintiff by which she was to give him the premises in consideration of his payment of taxes and insurance. ( Roberge v. Bonner, 185 N.Y. 265; Rosseau v. Rouss, 180 id. 116.)
The defendants are entitled to a decree dismissing the complaint on the merits, with costs.