
    Walter A. Burden and Charles E. Burden, Appellants, v. Lavina A. Burden and Others, Respondents.
    
      Deed by a husband to his wife, unrecorded — notwithstanding taxes paid, and conveyances made of parts of the premises to third persons, by the husband, the wifds title is good as against the husband’s heirs.
    
    Where the owner of real estate, more than twenty years before his death, conveys real property, through an intermediary, to his wife, and the deeds of transfer, though not recorded, are actually delivered to her upon the day of their execution and have always been retained by her, she may successfully resist an action for the recovery of the premises brought by the heirs at law of the grantor, notwithstanding the fact that the grantor, up to the time of his death, retained possession of and paid taxes upon all the property except two portions which he, subsequently to the conveyance to his wife, conveyed to other persons by deeds in which she joined.
    Appeal by the plaintiffs, Walter H. Burden and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 4th day of March, 1896, upon the decision of the court rendered after a trial at the Queens County Special Term dismissing the plaintiffs’ complaint upon the merits.
    
      Augustus N. Weller, for the appellants.
    
      Thomas G. Enever, for the respondents.
   Willard Bartlett, J.:

The plaintiffs are sons and heirs at law of the late Capt. Henry Burden, of Long Island City. The defendant La vina A. Burden is his widow. On October 2, 1875, Capt. Burden, being the owner of certain valuable real estate in the town of Newtown, in Queens county, executed a conveyance of the same to Henry Burden, a nephew, who, with his wife, thereupon immediately executed a further conveyance thereof to La vina A. Burden. There is no doubt that these deeds were made for the purpose of transferring the title of the property from Capt. Burden to his wife, through his nephew as an intermediary. They were not recorded, however, during the lifetime of the captain, nor does their existence appear to have been known to his children until after his death. He died on October 30,

App. Div.] Second Department, November Term, 1896. 1895, and the deeds were placed on record in the office of the county clerk of Queens county, at the instance of the widow, on November 2, 1895. The plaintiffs insist that the conveyances were never delivered, and seek, on this ground, to have them set aside as a cloud on their title as heirs at law.

To sustain their position the plaintiffs proved that Capt. Burden retained possession of all the property, except two pieces, during the twenty years between the time of the execution of the above-mentioned deeds and the time of his death; that in 1888 he conveyed a part of the land to the plaintiff Charles E. Burden, his wife, the defendant Lavinia A. Burden joining in the conveyance in order to cut off her dower; that in 1892 he made a similar conveyance of another piece to the Architectural Terra Cotta Company in which his wife also joined, and that lie continued to pay the taxes upon all the property except the two portions thus conveyed. The theory of the plaintiffs’ case was that Capt. Burden formed the intention in 1875 of conveying this real estate to his wife to avoid a liability which he apprehended as one of the directors of a bank which had then recently failed; but that, after executing the deeds, he changed his mind, concluded not to deliver them, and kept them in a box in his own possession up to the time of his death. The plaintiffs offered testimony tending to show that the defendant Lavinia A. Burden had admitted this to be the fact. Mrs. Burden, however, denied having made any such admission, and swore positively to the actual delivery of the deeds to her on the day of their execution and to her retention of them always afterward. As to the delivery her testimony was strongly corroborated by that of the nephew, Henry Burden, who appears to have been a wholly disinterested witness, and who swore that he himself handed the deeds to iiis aunt, Mrs. Lavinia A. Burden, at the law office of Mr. Otto Horwit-z, where they were executed. Further corroboration, although less positive in its character, was furnished by the testimony of Mr. Iiorwitz. Considering the evidence as a whole, I think the learned trial judge was undoubtedly right in holding that the deeds had been delivered.

This was the only litigated issue of fact. It was tried most favorably to the plaintiffs, who were allowed to prove Capt. Burden’s declarations concerning his ownership of the land, made after the execution of the conveyances to his wife and in her absence. Notwithstanding this testimony, the. court found that there had been a delivery on evidence sufficient to support such finding. The fact that some of the property had meantime been conveyed away to third parties by the grantor in' the unrecorded deed was not conclusive evidence against a delivery. (Williams v. Williams, 142 N. Y. 156.) In the case cited the appeal book shows that the defendant had subsequently sold a part of the land which he originally conveyed to the plaintiff by an unrecorded deed, and yet a judgment in ejectment in her favor for the recovery of the remaining land was sustained.

The judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.-  