74 N.Y.S. 981 | N.Y. App. Div. | 1902
The plaintiff sues to recover a judgment determining that he is the owner of certain real estate in Brooklyn, and to require the defendants, Jeremiah Leary and wife, to convey the title to him. The real estate was owned during her lifetime by the plaintiff’s wife. On her death, which occurred February 3, 1900, it descended to the defendant Jeremiah Leary, as her only heir at law. But the plaintiff claims that his wife deeded the property on May 2, 1891, to one Jeremiah F. Leary, Jr., and that the latter and the latter’s wife on the same day deeded it to the plaintiff and the plaintiff’s wife as joint tenants; he succeeding to the fee on her death, by survivorship. The deeds were never recorded, and the plaintiff Claims that they are lost, and the controversy hinges on the proof of their existence. The plaintiff offered no proof but his own evidence, and, if he can maintain the action, there is nothing in section 829 of the Code of Civil Procedure to prevent a claim of title by purchase to the real estate of a deceased person from being successfully supported by the uncorroborated oath of the claimant to the effect that he once had in his possession a deed of the property, bearing the genuine signature of the deceased. Such a result is clearly in conflict with the spirit of the section cited, and I think, also, with the letter. The plaintiff was permitted to testify that he prepared the two deeds, one conveying the property from his wife to Jeremiah F. Leary, Jr., as the conduit through whom she. designed to make the transfer, and the other conveying the property from said Leary and wife to the plaintiff and wife jointly; that these deeds were in his possession until shortly before his wife’s death; that all the signatures were genuine; and that after his wife’s death he looked for the deeds in the place where he had been accustomed to keep them, but found they were gone, and he has never since seen them. On the other hand, both Jeremiah F. Leary, Jr., and his wife testified that no such deed had ever been executed to or by them. The decision of the learned trial justice finding that the plaintiff’s wife died seised of the premises in question is an adoption of the truth of this testimony; and, even assuming that the plaintiff’s evidence is competent, it certainly does not furnish such a preponderance as would justify a reversal..
“What occurred at that time was a transaction between the testatrix and the witness, within the meaning of section 829 of the Code, although he took no actual part in the conversation, and it was wholly between the testatrix and the attesting witnesses. If active participation in the conversation was necessary to exclude an interested witness, and he should, as an observer, be permitted to testify to transactions in form between the deceased and third persons, although such transactions were in his interest, it would furnish an easy and convenient method, in every ease, of evading the statute. The decisions have enforced the spirit of the statute bjr excluding such evidence, and have treated transactions between the deceased and third persons in.the presence of interested parties as if the witness actually participated therein. Holcomb v. Holcomb, 95 N. Y. 319; In re Eysaman’s Will, 113 N. Y. 62, 20 N. E. 613, 3 L. R. A. 599; In re Dunham, 121 N. Y. 575, 24 N. E. 932.”
In this case I think the plaintiff did actually participate in the transaction. The transaction was the transfer of property from his wife to him. He was there for the purpose of receiving the deed which would be his muniment of title. The fact that two deeds were employed in consummating the transaction does not affect the principle involved, or render him, during any stage of the transaction thus accomplished in his presence, other than an active, present, and interested participant. He could accordingly no more testify to what took place than he could have done if his wife had executed a deed
■ Judgment affirmed, with costs. All concur.