
    William B. Slocum, App’lt, v. Catharine Doniol et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Deed—Proof of delivery of—When sufficient.
    The testimony showed that one Doniol contracted with plaintiff’s ancestor for the purchase of the land in suit, and had an option to take it, which he exercised, gave notice that he had sold the land to another party, and called for his deed. The vendor assented and helped measure the land. The surveyor, who was in the habit of acting for both parties, was intrusted with the duty of preparing the deed and procuring its execution. Doniol conveyed the land to his vendee, who entered into possession, and so continued with full knowledge of the original owner. Several years passed and no question of the title was made. But after the death of the original owner of the land and of the surveyor, no conveyance from the original owner was found on record. Held, that the facts warranted the conclusion that a conveyance was made and delivered to the surveyor, who assumed the duty of procuring it.
    Appeal from a judgment in favor of the defendants •entered at the Rockland county special term.
    This action was brought by the plaintiff, William B. Slocum, to recover from the defendants certain premises lying in the town of Orangetown, Rockland county, under a referee’s deed.
    The premises originally belonged to Hiram Slocum, who ■contracted with one Lucien Sanial to convey the same to him, and the grantor, Slocum, and the surveyor, Peter T. Haring, are both deceased.
    In January, 1867, Lucien Sanial conveyed part of the premises to one Gilbert Doniol, and in March, 1870, conveyed to him the balance.
    Hiram Slocum was present- at the time of the delivery of the first deed to Doniol, and congratulated Doniol on his ■purchase. Doniol entered into possession of the land, cultivated the same, and Hiram Slocum, who lived in the neighborhood, knew that he was in possession and cultivating the land.
    In 1873 Doniol sold the land to Peter Gommet and Bartolomi Sidoli, who entered into possession of the same, and cultivated it, and erected a dwelling-house thereon, with the knowledge of Hiram Slocum, who frequently passed while the buildings were being erected, and saw the same going up.
    When Doniol sold the premises to Gommet and Sidoli, they gave him a bond and mortgage to secure a part of the purchase-money, and on default in the payment of principal and interest, the mortgage was foreclosed, and at the sale the premises were purchased by Catharine Doniol, one of the defendants, and the same were subsequently conveyed to her by the sheriff of Rockland county, and she was put in possession of the same by virtue of a writ of assistance, and occupied and let the same. After this the plaintiff gave a quit-claim deed for these premises to one Massimo Sidoli, a son of Bartolomi Sidoli, stating the consideration as $1,500, and taking back a mortgage for the whole amount, no money whatever having been paid.
    In 1884 Massimo Sidoli, the grantee of William B. Slocum, commenced an action in this court to recover the same premises, and in that action, on January 26, 1886, this court adjudged that Catharine Doniol, the defendant herein, had a valid title to the premises; that Massimo Sidoli derived no title to said premises under the deed to him from William B. Slocum; and that the heirs and devisees of Hiram Slocum, and those claiming from or under them, are estopped from ■claiming any right, title, claim or interest in said premises.
    
      Subsequently the plaintiff, William B. Slocum, commenced an action to foreclose the mortgage given to him by Massimo Sidoli, making said Sidoli and one Edward Butler, a tenant of Catharine Doniol, who was in possession, the only parties, defendant, and on May 26, 1886, judgment was rendered therein- by default, the premises bought in by William B. Slocum, and a deed given to him by Frank Comesky, referee, and he then commenced this action to recover the premises under the last-mentioned deed.
    
      Frank Comesky, for app’lt; A. & A. X. Fallon, for resp’ts.
   Pratt, J.

The testimony shows that Doniol contracted

with Hiram Slocum, plaintiff’s ancestor, for the purchase of the land now in suit and other lands, and had an option to .take it at any time within five years. He exercised that ■option, gave notice that he had sold the land to another party and called for his deed. The vendor assented and .helped measure the land. The surveyor, who was in the habit of acting for both parties, was entrusted with the duty of preparing the deed and procuring its execution.

Doniol conveyed the land, to his vendee, who entered into possession and so continued with full knowledge of the original owner.

Several years elapsed and no question of the title is made. After the death of the original owner of the land and of the surveyor, it now appears that no conveyance from Hiram Slocum appears on record, and this action is brought upon the theory that none was ever executed.

We think the facts above, and others which appear in testimony, warrant the conclusion that a conveyance was made and delivered to the surveyor, who assumed the duty ■of procuring it. We cannot otherwise account for the fact that for many years free possession was allowed to Doniol’s grantees.

It follows that the judgment should be affirmed, with ■costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  