138 N.Y.S. 1044 | N.Y. App. Div. | 1912
The action is in ejectment. Plaintiff and defendant claim under a common grantor. Plaintiff claims under a deed executed prior to that of the defendant, but not recorded, at the time of the giving of the defendant’s deed. As I interpret the decison of the court, the complaint was dismissed upon two grounds: First, that no delivery of the deed to the plaintiff is shown. Secondly, that defendant was a purchaser for a valuable consideration of the land in question, without notice of the plaintiff’s deed.
The plaintiff was the grandson of the grantor, who is now dead. In 1905 she executed before one James 0. Enos a full covehant deed of these premises to plaintiff. After the death of Enos this deed was found among his papers, with this indorsement: “Mr. Howard T. Morthrup. To be delivered to him at the death of Mrs. Elizabeth C. Cornwell and to be kept until then by James C. Enos.” This indorsement was in the handwriting of Enos. In the deed it was recited that the grantee should have possession on the day of its date, the 18th day of July, 1905. The'learned trial court has held that this indorsement by Enos was no proof of a delivery of the deed to the plaintiff. In my judgment it is not material to consider the presumptions which may arise from the fact that the deed to plaintiff was found in the possession of Enos.' ■ After the death of Enos one Winfield S. Andrews, to whom had been given the
“Received—-Nassau, April 3d, 1908, of Mrs. Elizabeth C. Cornwell, a deed dated July 18th, 1905, given by the said Elizabeth C. Cornwell to Howard T. Northrup, to be delivered to the said Howard T. Northrup, at the decease of the said Elizabeth C. Cornwell, and to be held by me until her death.
“ (Signed) SARAH GREEN.
“ Witness, Emma E. Weatherby.” ■
There seems to be no question that this transaction was thoroughly understood by Mrs. Cornwell, and, irrespective of the question whether proof was made of the delivery of the deed to Mr. Enos for the plaintiff, this transaction constitutes a full delivery of the deed to Mrs. Green to be delivered to the plaintiff at the death of Mrs. Cornwell. In the appellant’s brief are many cases which go to sustain his contention that this constitutes a valid gift irrevocable by the grantee. It is hardly necessary to review those authorities, however, inasmuch as the respondent upon this argument does not take issue with the legal effect of such a transfer, but bases his defense mostly upon his good faith in thereafter taking his deed without the knowledge of the existence of this deed. Thereafter, and shortly before her death, Elizabeth Cornwell went to the defendant’s house to live. At that time she executed a contract whereby, in consideration -of the release of a fifty-dollar note, and in consideration of her care and maintenance until her death, she should deed to the defendant this property. In pursuance of this agreement a deed was executed and delivered to respondent, she representing to the defendant that she was then the
With the finding of the trial Court of the good faith of the defendant in taking the deed in question we do not concur. The trial judge has found that the defendant used every reasonable means to ascertain what were the plaintiff’s claims upon the property and failed to ascertain that a deed was outstanding. At the time of the execution of the deed to the defendant he took from. Elizabeth Cornwell, who was then-eighty-five years old and very feeble, an affidavit that she was the absolute owner of said premises; that no one had an unrecorded deed or mortgage or any papers or instrument affecting said premises, and that she had never delivered to any person any deeds or mortgages affecting said premises. That the defendant knew, however, that papers had been executed by Elizabeth Cornwell to the plaintiff is conceded by the defendant. Just prior to taking the deed from Elizabeth Cornwell, the defendant and an attorney went first to Mrs. Green and asked to see the papers which her father had held between Mrs. Cornwell and the plaintiff. Mrs. Green swears that the plaintiff referred to the papers .as “a, deed” from Elizabeth Corn-well to the plaintiff. This, however, is denied by the defendant. The safe which contained the papers, however, was then in the possession of Mrs. Weatherby, and the defendant was referred to her. Defendant with his lawyer, Hall, then went to Mrs. Weatherby’s house. After they had been there for a while this envelope containing plaintiff’s deed was taken from the safe. The indorsement that had been put thereupon by Enos was' read to the defendant. The papers, being sealed, were not opened, and it was conceded by all parties that Mrs. Weatherby had no authority to open them. Mr. and Mrs. ■
“ West Hoboken, N. J., Oct. 5, 1909.
“Dear Mrs. Weatherby:
“ I have had an interview with my lawyer and he advises me to say to you not to give the sealed envelope to any one under any circumstances. I am of the opinion that the cost of a writ of replevin will be too much for Mr. Coon to stand. Will you kindly advise me at once of any attempt that is made to get the possession of the paper ? With kindest regards from Mrs. Northrup and yours truly, I am
“Very truly yours,
“H. T. NORTHRUP.”
Just what request Mrs. Weatherby had made to Mr. North-rap in the letter to which the letter quoted was a response, is not clear. It is evident, however, that the impression received by this plaintiff was that the defendant was trying to get possession of the paper and that was what he declined to give.. There is nothing in the letter from which can be read any refusal on his part to disclose the nature of the paper which
The judgment should, therefore, be reversed upon law and facts, and a new trial granted, with costs to appellant to abide the event. The particular findings of fáct, of which the court disapproves are findings six, eight, twenty-one, twenty-three, twenty-six, twenty-seven and twenty-nine.
All concurred.
Judgment reversed on law and facts, and. new trial granted, with costs to appellant to abide event. The particular findings of fact of which the court disapproves are findings six, eight, twenty-one, twenty-three, twenty-six, twenty-seven and twenty-nine.