Ford v. James

2 Abb. Ct. App. 159 | NY | 1868

Clerks, J.—

1. The transaction between Edward D. James and Charles S. Spencer had none of the essential requisites of a delivery. An absolute delivery is one which is complete upon the actual transfer of the instrument from the possession of the grantor; and it may be by acts merely, by words merely, or by both combined; but in all cases, an intention that it shall be a delivery must exist. So far from this being an element in this case, at the time the deed was placed in the hands of Edward D. James, he declared that he did not then receive it as a conveyance, but that he would determine, within a day or two, whether his brother would accept it; and, if he determined within that time not to accept it, he would return the deed to Spencer, and receive back the twenty-five dollars, which he had advanced; but, if he determined to accept it within that time, he would pay the remainder of the agreed purchase money. So it is clear that there was and could have been no such acceptance as the law requires. There was no intention, by his own avowal, then, to accept; this was to be determined subsequently. Accordingly, within the time, he resolved not to accept; he called upon Spencer and received back the twenty-five dollars.

2. The conveyance from Albert S. James to the wife of Edward, gave her no rights; the act was not genuine; it was procured by her husband to consummate the fraud, and no consideration was paid. She was evidently not a purchaser in good faith, and so the referee has found. The description, in the record of the deed, was totally different from that in the deed; so” that if subsequent purchasers, before the correction of the record, could be affected by a transaction of this kind, there was no notice to them, actual or constructive. The only one of the defendants whose conduct was bona fide, and who suffered loss from this fraudulent transaction, was Williams But as the mortgagors had no title, only a fraudulent record, pretending to give them- a title, they could convey nothing to any person, however innocent he may be.

The judgment should be affirmed, with costs.

Grover, J.

The finding of the fact by the special term, that the deed dated May 28,1852, from John Graham and wife, to the defendant, Albert S. James, of the land in question, was never delivered, if sustained, disposes, of the case in favor of the respondent, and renders an examination of the other questions raised upon the trial unnecessary. It is obvious, that, if that deed is void for the reason that it was never delivered, all titles derived therefrom by subsequent conveyances must fall with it. The judgment of the special term having been affirmed by the general term, this finding must, by this court, be held- conclusive upon the parties, unless wholly unsupported by evidence. An inquiry cannot be gone into here, as to whether the finding was against the weight of evidence.

[The learned judge here recited the testimony of Spencer as stated above, and continued as follows.] Taking the evidence of Spencer alone, and it clearly appears that he never made any delivery of the deed, conditional or otherwise. He did not deliver it to James, as and for the deed of the grantors, but merely left it with him as depositaryuntil he should determine whether or not he would take the land. This constitutes no legal delivery. A deed may be deposited with the grantee or handed to him for any purpose other than as the deed of the grantor, or as an effective instrument between the parties, without becoming at all operative as a deed. The evidence in conflict with Spencer’s, tending to show that it was delivered as the deed of the grantors, cannot be considered by this court upon this appeal. The supreme court had the power to reverse the finding of the special term, upon the ground that it was against the weight of evidence, but this court has no such power.

The judgment appealed from must be affirmed.

A majority of the judges concurred.

Judgment affirmed, with costs.