Hood v. Webster

Loughran, J. Florence F. Hood owned a parcel of farm land in the town of Phelps, Ontario county. This property had been devised to her by her husband, whose will said that, should she predecease him, he wanted his estate to go to his brother, the plaintiff here. In 1913 Mrs. Hood executed a deed of the farm to the plaintiff and delivered it to his attorney as an escrow to take effect on her death. The Appellate Division has confirmed a finding of the Equity Term that this delivery was subject to no other condition. A majority of this court has come to the conclusion that the contrary of the fact so found may not be declared as matter of law on this record. Having all along occupied the property, Mrs. Hood in 1928 granted it to the defendants (her brother and a nephew) by a deed then recorded. She died in 1933. The prior deed held as an escrow was thereupon delivered over to the plaintiff who had it recorded. In this action to annul the subsequent deed to the defendants, it has been held that on the foregoing facts the plaintiff was entitled to prevail. *59 On this appeal by the defendants, the parties concede that the case made by the findings depends for its solution upon the force and effect of section 291 of the Real Property Law (Cons. Laws, ch. 50). It is thereby provided that every conveyance of real property not recorded “ is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real property or any portion thereof, whose conveyance is first duly recorded.” Did the single circumstance that the subsequent deed to the defendants was first on record establish, in the absence of evidence to the contrary, the matters thus essential to avoid the prior deed to the plaintiff? ; We think this question of burden of proof as fixed by the recording act is not for us an open one. The defendants were bound to make out by a fair preponderance of evidence the affirmative assertion of their status as purchasers in good faith and for a valuable consideration. (Westbrook v. Gleason, 79 N. Y. 23; Ten Eyck v. Witbeck, 135 N. Y. 40; Lehrenkrauss v. Bonnell, 199 N. Y. 240, 243.) Brown v. Volkening (64 N. Y. 76) and Constant v. University of Rochester (111 N. Y. 604; 133 N. Y. 640), as read by us, are not authorities to the contrary. In those cases the court did say that the party who claimed under an unrecorded conveyance was required to prove that the subsequent record purchaser took with notice. But here, as elsewhere, it must be kept in mind that the phrase “ burden of proof ” may stand in one connection “ for the never changing burden of establishing the proposition in issue,” and in another “ for the constantly changing burden of producing evidence.” (Thayer, Preliminary Treatise on Evidence, pp. 353-389.) In the Brown and Constant cases the controlling factor was that substantial value had been paid for the subsequent conveyance. That fact was more than evidence of consideration. It was further the basis for the auxil *60 iary inference that there was also good faith in the transaction, and what was said respecting the burden of proof had reference to the duty of adducing evidence to repel that inference. For the same reason, the burden of proof (in the same sense) is upon the holder of an unrecorded conveyance when a subsequent deed first recorded acknowledges receipt by the grantor of a consideration sufficient to satisfy the statute. (Wood v. Chapin, 13 N. Y. 509, 518; Page v. Waring, 76 N. Y. 463, 469; Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476, 483; Ward v. Isbill, 73 Hun, 550.) We have a different case here. Under their defense of purchase for value without notice the defendants offered no evidence of actual consideration given. The subsequent deed to them expressed their payment of “ One Dollar and other good and valuable consideration.” This recital was not enough to put them into the position of purchasers for a valuable consideration in the sense of the statute. (Ten Eyck v. Witbeck; Lehrenkrauss v. Bonnell, supra.) The duty of maintaining the affirmative of the issue, and in a primary sense the burden of proof, was cast upon the defendants by the recording act. They failed to discharge that burden. The judgment should be affirmed, with costs.