14 N.Y.S. 712 | N.Y. Sup. Ct. | 1891
Lead Opinion
The evidence offered by the plaintiff in this case is snbstantially like that on a former trial, upon which this court held, in setting aside a nonsuit and ordering a new trial, “that the evidence was sufficient to put the defendant upon'her defense.” 8 N. Y. Supp. 823. That decision establishes the right of the plaintiff to recover in this"form of action, and relieves this court from the consideration of that question at this time, and makes it. only necessary to inquire whether the defendant by her proof established a valid defense, and also whether the trial court erred in his rulings upon the questions raised by the defendant on the trial. The defense of the defendant, upon the merits of this controversy, rests solely upon the question whether or not she held, the premises in dispute under a valid conveyance, as against the plaintiff, as administrator of the estate of Mary Rousseau, and in that character representing the creditors of the estate of said deceased. We think the evidence fully justifies the finding and conclusion of the jury and learned court that the personal estate of the deceased was at the time of her death insufficient to pay her debts, and that recourse could therefore properly be had by her administrator to any real estate, or any interest in the same, belonging to the deceased, which might be available to a creditor for the collection of a debt against her. If, therefore, the deed to the defendant was a voluntary conveyance without consideration, it was void as against the creditors of the grantee; or, if made with intent to hinder, delay, or defraud the creditors of the grantor, it was in like manner void. But it is insisted on the part of the defendant that it was given upon a sufficient consideration of a preexisting indebtedness from the grantor, to the grantee, and that indebtedness is sought to be established by proof that the grantee-held the notes of the grantor, and also other claims against the grantor, which, together with the incumbrance upon the real estate, subject to which it was conveyed, constituted a full and adequate consideration for the deed. The difficulty with that contention is that the notes were excluded by the trial judge as incompetent evidence. The ground for the exclusion does not fully appear, but we think they were properly excluded, as it nowhere appears that they constituted any part of the consideration of the deed, and are nowhere referred to or shown to have been considered as such, and as it now appears that they are still in the possession of the grantee, and have not been canceled or surrendered to the maker, and they are in no way connected with the consideration expressed in the deed.
It is also urged by the learned counsel for the appellant that there was error committed on the trial in excluding testimony by Myers, thedraughtsmad of the deed, offered by the defendant as to what occurred between him ann the grantor at the time of the execution of the deed and its deposit with him. It appeared at the commencement of his examination as a witness that he was an attorney. We think, under the circumstances, his testimony, as to the personal communication between him and the deceased, who at that time sustained at least the implied relation of client and attorney, was properly excluded; and it appears from the evidence of the witness himself that he so regarded it, for, on being interrogated by Elizabeth Rousseau, who claims some interest in the property before the death of Mary, he refused to communicate any information to her as to Mary’s disposition of the property, and put his refusal upon the ground that “it would be improper and unprofessional for me to disclose any business given in my charge. ” But it is insisted by the appellant that, as the witness subscribed the deed as a witness, and took the acknowledgment of the same, the grantor thereby waived her privilege, and that the disability was thereby removed, and cites, in support of that contention, In re McCarthy, 8 N. Y. Supp. 578, and several other cases. In the case above cited the attorney was the subscribing witness to a will, which, being an attorney, he had drawn for the testator, and the court, in substance, holds that, by making the attorney one of the subscribing wit
Excluding the evidence of the draughtsman and that of Dr. Prefontain as to the declarations of the deceased, we find no proof of consideration in,this •case sufficient to uphold the validity of this .deed, as against the claims of creditors established in this action. But we think that there is another and serious objection in this case, as to the validity of. this deed, as against the •creditors of this grantor. It is conceded that the deed was never delivered to :the grantee by the grantor, and that the grantee had no knowledge of its existence until after the death of the grantor. It is true that a deed may be delivered as an escrow to a third person, to be delivered by him to the grantee •on the happening of some future event. But in this ease there was no actual ■delivery by the grantor to the grantee named in it, nor is there any evidence that the grantor ever gave any direction as to the time of its delivery, or that it should be ever delivered. Delivery in some form was absolutely essential to its validity. Stilwell v. Hubbard, 20 Wend. 44. “Delivery includes surrender and acceptance, and both are necessary to its completion. This must ■be the result of a contract,—the meeting of two minds, the accord of two wills. The grantor must be willing and agree to deliver, and the grantee must be willing and consent to receive, and this accord of wills must be evidenced in some way to show the unequivocal intention of both parties that the instruraént shall take effect according to its purport and tenor.” Best v. Brown, 25 Hun, 224; Fisher v. Hall, 41 N. Y. 416. But, if we assume in this case ■that this delivery of the deed by the grantor to the draughtsman Myer was valid as an escrow to be delivered to the grantee on the death of the grantor, •it would not in that event be operative until delivery, (Hinman v. Booth, 21 Wend. 267;) and, not being upon a valuable consideration, would be subject ;to the debts of the deceased existing at the time of her death; so that, in either ■event, the deed would, as to the creditors of the grantor, be inoperative and void. We have carefully examined all the exceptions taken by the learned ■counsel for the appellant, many of which have not been discussed here, but we find no error in the rulings of the learned trial judge for which this .judgment should be reversed. Judgment affirmed, with costs.
Landon, J.,- concurs.
Dissenting Opinion
(dissenting.) The judgment in this action sets aside the ■deed from the deceased to defendant, and declares the property to belong to :the estate of deceased. It appoints a receiver, with power to sell the property, and pay the debts of the deceased, directing him, first, to pay the dam•ages of Elizabeth Rousseau; then to pay to plaintiff the amount of any other debts of deceased. I had occasion to suggest in a former case the inconsistency of permitting an administrator to bring an aiction to set aside a deed of land, and remarked that chapter 314, Laws of 1858, speaks of “estate or .property held by or of right belonging to such trustee or estate;” and that the property of the deceased does not belong to the executor or administrator. But there are expressions in some eases indicating that the executor or administrator may bring the action to set aside a deed of real estate of the deceased alleged to be fraudulent. I cannot think, however, that in such an action the court has the right to change the whole system of enforcing debts ■of deceased persons against their real estate. The statute (Code, § 2749) has provided a settled course to be pursued when real estate is to be made liable •to debts of a deceased person. If this deed is fraudulent as to creditors, then
