49 Barb. 367 | N.Y. Sup. Ct. | 1867
The lien acquired by Huber, on the 17th May, 1861, upon the premises in dispute, attached only to the legal right, title and interest then existing in Brooks. (Laws of 1851, oh. 513, § 1.)
Before the lien was filed, Brooks had parted with his entire title to the premises. It appears that Brooks had employed Hetzel to perform work and furnish materials in the construction of buildings on certain premises, of which the lot in dispute was a part, and in payment for such work and materials he had contracted to convey to Hetzel the house and lot in suit. Hetzel performed the contract on his part, and Brooks, in pursuance of its requirements, executed a deed of 'the premises in dispute, to Hetzel, dated the 1st May, 1861, and on the 9th May delivered it to William D. Barton, with instructions to deliver it to Hetzel. Barton handed it to J ames Saxton to deliver to Hetzel, and Saxton retained it in his hands till the 18th May, 1861, when he delivered it Hetzel. It is apparent from the uncontradicted testimony of Barton, that the delivery of the deed to Hetzel did not depend upon any condition, but the depositary was made the agent of the grantor to deliver the deed presently, to the grantee. Barton testified that he would have delivered the deed to. Hetzel the same day he received it, if he had seen him. As between the parties to the deed, the title passed at the time of the delivery to Barton, (34 N. Y. Rep. 92,) and consequently Brooks had no interest in the premises when Huber' filed his lien.
It follows that the judgment should be reversed and a new trial be ordered.
Leonard, Ingraham and J. C. Smith, Justices.)
