2 N.Y.S. 535 | N.Y. Sup. Ct. | 1888
The parties claim title to the premises founded upon deeds made to them, respectively, by George Smith, the previous owner. The deed to the plaintiff was dated May 14, 1883, and recorded on that day. The deed to the defendant was dated January 28, 1876, and recorded April 5,1886. The latter deed embraced this with other lands. The questions litigated at the trial were (1) whether the deed to the defendant had been delivered to him by George Smith, the grantor named in it, at the time the deed was made to the plaintiff; (2) whether the plaintiff was a purchaser'in good faith, and for a valuable consideration, of the land covered by the deed to her. In addition to the general verdict for the plaintiff, the jury found specially upon questions submitted to them—First, that the deed of January 28, 1876, was delivered to the defendant before May 14, 1883; second, that at or before the time of the delivery of the deed to the plaintiff she had no knowledge or notice of the existence of the deed of January 28, 1876. As bearing upon the question of delivery of the deed to the defendant, evidence was given of his declarations, and of statements in his presence of George Smith, after the time such deed to the defendant bore date, and after that to the plaintiff was made; and to the reception of such evidence the defendant’s counsel excepted. While the evidence of such declarations was not admissible to destroy the operation and legal effect of the deed, it was competent for the plaintiff to prove, if she could, that such deed had not been delivered to the defendant, and therefore did not become operative. Jackson v. Chapin, 5 Cow. 485; Jackson v. Cary, 16 Johns. 302; Jackson v. Miller, 6 Cow. 751; Keator v. Dimmick, 46 Barb. 158. In view of the circumstances which the evidence permitted the jury to consider, the reception of the evidence was not error. But the consideration of this question does not seem important, inasmuch as the fact of delivery of the defendant’s deed was found in his favor by the jury. The plaintiff’s deed was recorded first. And her recovery was based upon the fact, which must be deemed found by the jury, that she was a purchaser in good faith and for a valuable consideration, and therefore that the defendant’s deed was void as against her. 1 Rev. St. p. 756, § 1. The defendant’s counsel contends that such conclusion was not warranted. There was considerable evidence given by the defendant tending to prove that the plaintiff was advised of the deed to the defendant before the deed to her was made, all of which was contradicted by her testimony, and in some respects she was corroborated by the evidence of other witnesses; and she also testified that she had no knowledge or information t-hat any such deed had been made to the defendant until after it had been recorded in April, 1886. Upon this conflict of evidence that question of fact, for the purposes of this review, must be deemed disposed of by the verdict of the jury. The opportunity at the trial was better than here to correctly determine the truth of the matter.
Barker, P. J., and Haight, J., concur. Dwight, J., not voting.