Molloy v. Pierson

BEASLY, J.,

pro tem.

William Molloy and John J. Ryan were friends. The former had brought Ryan to this country

[487]

from their home in the old world, and Ryan had been for years an intimate of Molloy’s family. During the years preceding April 1, 1910, Ryan had loaned Molloy several thousand dollars, which on that day was unpaid. These men trusted each other. There had never been any writing between them. On or about April 1, 1910, Molloy being told that he was about to die, sent his wife to the family lawyer for advice about the settlement of his affairs. The lawyer suggested that Molloy deed his property, consisting of certain real estate, to his wife. This advice was followed, and with the aid of a notary, Molloy executed a deed by which all his property was conveyed to his wife. At the same time Mrs. Molloy, at her husband’s request, signed a note to Ryan, written by the same notary, for the sum of $3,287.50, which was the amount of his debt. Three years subsequently Mrs. Molloy gave Ryan eight hundred dollars, which the defendant in this action claims was, and Mrs. Molloy claims was not, a payment on the note. At the same time that she gave Ryan this sum Mrs. Molloy executed a new note to him for $3,115.44, being the amount due on the first note less eight hundred dollars. Mr. Ryan died in January, 1914, and the defendant in this action was thereupon appointed administratrix of his estate. In June, 1914, the defendant here began an action against Mrs. Molloy to collect the second note given by her to Mr. Ryan. Mrs. Molloy was served with summons in the action by the attorney who began the action. She defaulted by not appearing, and judgment was taken against her on the note. One year later, in July, 1915, an execution was issued and levied on her real estate, whereupon Mrs. Molloy immediately began this action to set aside her default and the judgment against her in the action on the note. In the present action Mrs. Molloy alleges that her default in the other action was procured by fraud practiced upon her by the attorney who began that action on the note, and that she has good defenses to that action on the merits, the defenses she asserts being that the note was without consideration and that it was not delivered.

These defenses' deal necessarily with the execution and delivery of the first note given by her to Ryan at the time of her husband’s illness.