64 N.Y.S. 959 | N.Y. App. Div. | 1900
This action was brought for the partition of real property. The ■answer denied the title of the plaintiff, and the sole question to be ■determined by the referee was whether the plaintiff (a corporation) was the owner of a onp-quarter interest in the property, or whether it belonged to Paulina A. Jung. The referee decided in favor of the latter, and from the judgment entered appeal comes to this court.
Henry A. Jung was originally the owner of the property "in question. «Upon his death the property passed by will to his four children, subject to the dower right of his widow. By a ¡irovision of the will, the widow was permitted to elect whether or not to accept a portion of the value of the property, upon its sale,'in lieu of dower, and this she subsequently did. By an arrangement between the parties the title became vested in the four children of Henry A. Jung. The amount of the widow’s dower was fixed at $4,000, which sum was paid to her son Adolph M. Jung, who undertook to
The suggestion of the appellant, that the deed was not delivered and accepted, presents a question quite fully discussed by this court in National Bank v. Bonnell (46 App. Div. 302), and we are of opinion that in the case at bar there was a full compliance with the law, and that the delivery and acceptance were complete and operated to divest Adolph M. Jung of all title or interest in the property. It has been held that where a deed is delivered to a third person, and the delivery is absolute and unqualified, the grantor not reserving any future control over the. deed, the estate passes — the assent of the grantee to accept the conveyance being presumed from the fact that the conveyance is beneficial to him. (Munoz v. Wilson, 111 N. Y. 295.) In the case at bar the deed was not only delivered to Paulina A. Jung, but was by her delivered to a third person for the purpose of recording, and was duly recorded on the following morning. The title being i.n Paulina A. Jung at the time of the docketing of the judgment, the judgment -did not become a lien upon the property in question, and the purchase by the plaintiff at sheriff’s sale after the recording of Paulina A. Jung’s deed did not operate to give the plaintiff any rights. The judgment appealed from should, therefore, be affirmed, with costs.
All concurred, Hibschbebg, J., in result.
Judgment affirmed, with costs'.