48 Barb. 581 | N.Y. Sup. Ct. | 1866
1. The validity of the transaction which gave rise to the notes in controversy, was affirmed by this court in the case of this plaintiff against the makers of the notes. It was sought in that , case to impeach the sale in part consideration of which the notes were given, on the ground that it was fraudulent as to the creditors of the intestate. The court, however, held otherwise, and we must be governed by that decision.
2. Irrespective of the question whether there was a valid and effectual gift of the money which the makers of the notes thereby promised to pay to the payees 'thereof, (which we will presently consider,) we are of the opinion that this action cannot be sustained. A legal title, or right of possession, is indispensable to the maintenance of an action of trover. An equitable right, merely, without any muniment of legal title, or of a legal right of possession, is not sufficient. (Herring v. Tilghman, 13 Ired. 392. Billion v. Carroll, id. 431.) To allow one not a party to a note to recover it, or the value of it, from the payee, would be an anomaly in law. The maker of the note, or any one liable upon it, might maintain such an action, on proper proof. But to allow a recovery in such an action on the ground that the promise contained in the note was to the plaintiff, or to one under whom he claimed title to it, and not to the payee, would be a violation of the maxim that written contracts cannot be contradicted by parol evidence. The notes had no value, as property, to the intestate. They are only evidences of debt; and in a court of law are enforcible only in behalf of the payee. If, as is contended by the plaintiff, the evidence be such as to show that the intended gift did not take effect, or was revoked, the remedy of the administrator would be by a bill in equity, to recover the consideration of the notes from the makers, or to avoid the sale out of which they arose, and to get back the
3. We think there was a valid and effectual gift of the money payable on the notes. By the common law, personal property may pass by gift or grant, with or without deed, (Gom. Dig. Biens. D, 2;) but a parol gift, without some act of delivery, will not alter the property, whether by act inter vivos, or mortis causa. But where a gift inter vivos is perfected by delivery of possession of the thing, or delivery of a deed of gift, it is complete, although made without any consideration. The statute avoids voluntary grants and gifts in fraud of creditors. But, as before stated, we are concluded by the decision in the former case from considering the effect of this transaction upon the creditors of the intestate. For it was then held that it was not fraudulent as to creditors; that no trust was created for the use of the grantor; and that it was a fair and just distribution of the estate of the intestate among his children. The decision in that case must be deemed res adjudicata as to this question of fraud. The agreement between the intestate and his daughters, made contemporaneously with the sale to them of his farm and personal property, recites the consideration of such sale, and refers to the notes aforesaid as being the portions that the said John Fulton (the intestate) wishes them (the payees) to receive out of his property,' after the decease of himself and his wife. These notes were afterwards canceled, and new notes taken, in reference to which the intestate signed a paper describing them, a.nd declaring that he intended they should be considered by his children “in full of their share in his property, real and personal, which he had or ever had had.” The intestate caused the notes to be made payable to his children, who are named therein as payees, respectively. This transferred the legal title to the debts represented in the notes ; and with the accompanying declaration contained in the agreement and paper aforesaid, furnishes satisfactory evidence
But independently of this, there was, in contemplation of law, a delivery of the subject of the gift. That was the money payable upon the notes. “ Delivery,” says Chancellor Kent, (2 Kent’s Com. 439,)»“in this, as in every other case, must be according to the nature of the thing. It may be constructive. It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject.” That the intestate intended to make this gift to, or settlement upon, his children is unquestionable. There is no evidence that he changed his mind. The fact that the notes were left by him in a position where the beneficiaries might take them after his death, is convincing proof that he did not. No further formality to complete the gift was necessary. It is only when something remains to be done by or in behalf of the
The order granting a new trial must he reversed, with costs.
Scrugham, Lott, J. B. Barnard and GUhert, Justices.]