Messelback v. Norman

Learned, P. J.: It is undoubtedly true that delivery is essential to the validity of a deed. The meaning of this is that merely to sign and seal and acknowledge a writing, and then to keep it in one’s possession conveys no title. There must be some act showing that the grantor intends that it shall take effect. That act is delivery to the grantee, actual or presumed. Causing a deed to be recorded is prima facie evidence of delivery. (Tompkins v. Wheeler, 16 Peters, 106 ; Gilbert v. N. Am. F. Ins. Co., 23 Wend., 43.) For, as said, the delivery to the officer to be recorded may be considered as a delivery to a stranger for the use of the grantee, (Rathbun v. Rathbun, 6 Barb., 98.) ■So it was said in Moore v. Hazelton (91 Mass. [9 Allen], 102), that execution of a deed, in the presence of an attesting witness, is sufficient evidence from which to infer a delivery. (See cases there cited.) The grantor in that case had retained the deed. •In Scrugham v. Wood (15 Wend., 545) the court cited, with approval, the case of Doe v. Knight (5 Barn. & Cress., 671), as follows : “ Where a party to .an instrument seals it and declares in the presence of a witness that he delivers it as hi$ deed but keeps it in his own possession * * * delivery to the party who is to take by the deed or to any person for his use is not essential.” Now, we must notice that the plaintiff, after causing the deed to be drawn, and after executing and acknowledging it, took it away and kept it for about a month. She then carried it to the judge who [417] had drawn it to take it to the county clerk’s office and have it recorded, and this he did. In the absence of any proof .to the contrary, here was evidence from which a delivery could be inferred. There is nothing which shows that the delivery to the county clerk was for any other purpose than for the use of the grantee. Further, it is apparent that under a system of recording deeds, by which the record or a certified copy is of equal validity with the deed, the actual possession of a recorded deed has become a matter of less consequence than it once was. It is difficult to see what act of the grantor can be more expressive of an intent to deliver than the causing of the deed to be recorded. Of course the grantee cannot be compelled to accept against his will. But where a deed is plainly beneficial to the grantee, accompanied by no trust imposed on him, his acceptance is to be presumed unless dissent is shown. There was also in this case a moral consideration. The plaintiff says that the children and her husband had paid about $800 on the property, and that the children had paid about $400 towards building the house. None of the children were called to show that they had refused to aceept the deed; nor does the plaintiff claim that they had ever dissented. They may well have known of the deed, although she did not tell them of it. Altogether we think that the evidence did -not justify a finding that the deed was not delivered. The testimony of plaintiff was that she thought the deed was a will; that she wanted a will, and meant this deed to be a will; that she meant to have the judge draw a paper that should give the property -to -her children after her death. There was nothing to support this, and the -judge testified that nothing was said about a will. This -evidence of what she meant, not strengthened by any. evidence that any incorrect misrepresentations were made to her of the nature of the instrument she was signing, is not enough to destroy its effect. If it were, no -dependence could be placed on any -instrument. The policy was, by. its-terms, to be void if. the. insured be not the sole and unconditional owner of the property or if the interest of the assured be not truly stated. "We are of the opinion that on the evidence the policy was void. (Treadway v. Hamilton Mut. Ins. Co., 29 Conn., 68.) The referee held that the house was unoccupied at the time of the fire, but that Bennett, the agent of [418] defendant, had waived the condition touching this point. It is not expressly shown in the case what was the nature of Bennett’s agency. But from all the circumstances it would seem that he was not a general agent of the company. Had he been he might have waived ,ithe condition. (Steen v. Niagara Fire Ins. Co., 89 N. Y., 315.) It is doubtful whether Bennett had such power. (Walsh v. Hartford Fire Ins. Co,, 13 N. Y., 5; Marvin v. Universal Life Ins. Co., 85 N. Y., 278.) ’ The judgment should be reversed, new trial granted, referee discharged, costs to abide event. Landon and Williams, JJ., concurred. Judgment reversed, new trial granted, referee discharged, costs to ■abide event.