117 N.Y.S. 1104 | N.Y. App. Div. | 1909
The evidence shows clearly the execution and delivery of the deed of the farm by the father to the plaintiff and that it was kept from record so that the same should be kept temporarily at least from the creditors of the plaintiff. That did not, however, affect the equitable division which the father was making of his property among his children. If the deed was made and delivered, as the evidence tends to show, the circumstance that it was not recorded for the purpose stated would not justify the defense interposed by the defendant. The fact that a trust deed was afterwards given by the grantor to the sister covering these premises together with the premises deeded to her, does not divest the plaintiff of the title which he received from his father. Upon the evidence it seems clear that the plaintiff was the owner of the real estate.
The plaintiff swears that he was the owner of the personal property mentioned in the proof of loss, none of which was ever owned by his father or covered by either of the bills of sale. The nonsuit, in any view of the case, was not warranted. (Donley v. Glens Falls Ins. Co., 184 N. Y. 107.)
The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.
