WILLARD BARTLETT, J.

In view of the findings of fact made by the trial court and the unanimous affirmance by the Appellate Division, I am unable to perceive any ground which would justify us in interfering with this judgment. So far as the express allegations of the complaint are concerned, the learned judge at Special Term has found that the respondent did not commit any of the acts of blackmail or extortion which are charged therein. These findings being amply sufficient to sustain the conclusions of law and having been unanimously affirmed by the Appellate Division leave no question open for consideration in this court unless it be true, as is contended in behalf of the appellant, that notwithstanding the absence of any specific averment of undue influence in the complaint the trial court was bound to presume the existence and exercise of such influence by reason of the facts which were found as to the illicit sexual relations between the appellant and the respondent at the time of making the gifts which are the subject of attack in this suit. The learned counsel for the appellant invokes the doctrine which is nowhere better stated than by Mr. Justice Cooley in his well-known work on the Law of Torts in these words: "Where a transaction is brought about while the parties are living in illegal sexual relations it is always open to suspicion of fraud or undue influence, and if it is a gift or a sale for an inadequate consideration, or if it is specially beneficial to one party rather than to the other, the party benefited by it will be under the necessity of showing that no advantage was taken and that it was the result of free volition." (2 Cooley on Torts [3d ed.], 982.)

The proposition presented for our sanction is that the rule thus laid down made it the duty of the judge at Special Term to find that the gifts from the appellant to the respondent were induced by the exercise of undue influence as soon as he was convinced that the donor was maintaining the donee as his mistress. This proposition necessarily rests upon the hypothesis that the presumption of undue influence arising out of illicit sexual cohabitation is a presumption of law rather than a presumption of fact. If this view as to the character of the presumption be correct, then proof which establishes the existence of the illicit relation would necessarily demand the inference that gifts made during the continuance of that relation were brought about by the exercise of undue influence; for a presumption of law is a rule which requires that a particular inference must be drawn from an ascertained state of facts. If, on the other hand, the presumption of undue influence in the case of a gift by a man to a woman with whom he has a meretricious connection is only a presumption of fact, it merely warrants the trial court in deducing the exercise of undue influence from the fact that the sexual relations between the parties were improper, but does not absolutely demand that such an inference shall be drawn from that fact. In other words, a presumption of fact leaves the trial court at liberty to infer certain conclusions from a certain set of circumstances, but does not compel it to do so.

An examination of the various cases relied upon to support the position of the appellant shows quite clearly, I think, that the presumption of undue influence in respect to gifts by a man to his mistress has generally been regarded by the courts as a presumption of fact. The case of Dean v. Negley (41 Pa. St. 312) was a feigned issue to determine the validity of the will of one William Johnston. The parties opposing the will offered to prove upon the trial among other things that Johnston both before and after the death of his wife maintained a continuous adulterous intercourse with a Mrs. Bolton who was the mother of the children to whom he had devised the bulk of his estate. It was held that the trial court erred in refusing to receive proof of the relation between the testator and Mrs. Bolton. The opinion of the Supreme Court was delivered by LOWRIE, C.J., who said: "There can be no doubt that a long-continued relation of adulterous intercourse is a relation of great mutual influence of each over the mind and person and property of the other. History abounds with proofs of it, and it requires no very long life, or very close observation of persons around us, in order to reveal the fact. * * * If, then, there was such a relation between the testator and Mrs. Bolton at the time of making the will, as was offered to be proved, we think that that fact, taken in connection with the devise to Mrs. Bolton's daughters, is evidence of an undue influence exerted by her over the testator, and affecting the dispositions of his will, and that it may justify a verdict against the validity of the will. I have, myself, thought that it raised a presumption of law of undue influence, but we do not so decide, but leave it as a question of fact merely." Here we have a distinct refusal by the Supreme Court of Pennsylvania to treat the presumption as one of law. In other states where it has been asserted that the exercise of unlawful influence will be presumed in cases where the parties to a gift live in adulterous or illicit relations in the absence of proof of a legal consideration, I find nothing in the language of the courts which conveys the idea that they regarded the presumption as one which must be adopted, as would be the case if it were deemed a presumption of law. The import of the decisions is merely that the jury or the chancellor, as the case may be, will be justified in assuming the exercise of undue influence under such circumstances so as to impose upon the donee the burden of establishing a lawful consideration, but that the rule which permits this to be done is not imperative upon the trial court so as to constrain it to reach that conclusion. ( Shipman v. Furniss, 69 Ala. 555; Leighton v. Orr, 44 Ia. 679, and Hanna v. Wilcox, 53 Ia. 547.) In the case last cited an attack was made upon a conveyance executed by a deceased grantor to a woman with whom he was living in adulterous relations at the time when the deed was made. "The exercise of unlawful influence," said the Supreme Court of Iowa, "will be presumed where the parties to a deed live in adulterous relations in the absence of proof of a lawful consideration." This remark must have been intended to assert the rule stated as a presumption of fact rather than a presumption of law, because the case was triable in the Supreme Court de novo and the opinion was rendered at the conclusion of the trial therein.

Irrespective of judicial authority in other states, however, and even if a different view prevailed elsewhere, I think it is carrying the rule of evidence applicable to such cases as that before us far enough to hold that the presumption under consideration is simply a presumption of fact which will sustain a judgment based upon undue influence if the trial court chooses to adopt it, but which the trial court is not constrained to adopt. I see no reason why the presumption here should be any stronger than that which arises in a prosecution for larceny by reason of the recent possession of stolen goods. While the recent possession of stolen property by a person is held to raise a presumption of guilt it is not one which necessarily requires a conviction but is merely a fact for the consideration of the jury under all the circumstances of the case. ( People v. Weldon, 111 N.Y. 569.) In the case at bar the Appellate Division recognized that the relations between the appellant and the respondent had been proven to be such as would have authorized a presumption of undue influence by the trial judge if he had seen fit to make it; but the opinion goes on to declare that such presumption was entirely overcome by the testimony of the plaintiff himself. In other words, the Appellate Division has held, correctly, as I think, that the presumption was not absolute, and has further asserted, in the exercise of its power to deal exclusively with the facts, that the learned trial judge did right in rejecting it.

While it may seem unfortunate that the effect of the present judgment is to leave in the possession of the respondent a very large sum of money which she obtained from the appellant as his mistress, it is to be observed that the courts below have found in effect that the payments were wholly voluntary. If it be true that they were induced by the sexual intimacy between the parties a court of equity could not interfere at the instance of the donor to enable him to recover his money inasmuch as the gift has been fully executed and the consideration was plainly immoral. Where illicit sexual intercourse is the consideration for the payment of money and the money has been paid, the courts will not aid the donor to recover it back any more than they would enforce in behalf of a woman the unexecuted promise of a man to pay her money in consideration of such intercourse. (2 Schouler's Personal Property [3d ed.], § 61.) "That which one promises to give for an illegal or immoral consideration he cannot be compelled to give; and that which he has given on such a consideration he cannot recover. The law will not afford relief to either party, in pari causa turpitudinis; but leaves them just where they have placed themselves." ( Monatt v. Parker, 30 La. Ann. 585.)

I find no error of law in this record; the determination of the courts below upon the question of fact is not reviewable here; and I, therefore, advise the affirmance of the judgment, with costs.

CULLEN, Ch. J., HAIGHT, VANN, WERNER and HISCOCK, JJ., concur; GRAY, J., absent.

Judgment affirmed.