
    Fourth Department,
    May, 1935.
    William J. Hood, Respondent, v. Howard A. Webster and Another, Appellants.
   Judgment affirmed, with costs, on the authority of Flickinger v. Glass (222 N. Y. 404) and Ochenkowski v. Dunaj (232 App. Div. 441). All concur, éxdépt Thompson and Lewis, Jj., who dissent and vote for reversal on the law and a néw trial in an opinion by Thompson, j. (The judgment cancels a deed Of real property.) Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.

Thompson, J. (dissenting).

To sustain the burden of proof cast upon Mm in his action to have defendants’ deed canceled of record, and thus remove a cloud from Ms title, plaintiff rests upon the testimony of defendants’ deed, wMdh he, plaintiff, put in evidence. In point of tíme tMs déed was executed, delivered and recorded, after execution and delivery of plaintiff’s deed iñ esdrdW, but before the happening of the event wMch terminated the escrow, and the Consequent delivery and recording of Ms, plaintiff’s, deed. Defendants offered no prodf. Plaintiff was not iñ possession of the land described in the deed; defendants were. Possession of real estate is prirna facie evidence of the “ Mghést estate in the property, to wit, a seisin in fee.’’ (Hill v. Draper, 10 Barb. 454 [Gen. Term, Fifth Dist.].) Under section 291 of the Real Property law, plaintiff Cannot Succeed in Ms action, unless he shows that defendants were not purchasers in good faith, or for a Valuable consideration. Wé think the Special Term was in error in holding that by proving defendants’ deed, plaintiff made Out a prima facie case for himself. (Constant v. University of Rochester, 133 N. Y. 640; Brown v. Volkening, 64 id. 76; Kirchhoff v. Gerli, 171 App. Div. 160; 23 R. C. L. 247.) The deed alone did not afford a basis fór a presumption that it was not given for a valuable Consideration, although a nominal consideration only is mentioned in it. Plaintiff adduced no proofs showing that defendants had notice or knowledge of plaintiff's deed, ás yét undelivered to plaintiff, and unrecorded when defendants obtained their deed, Or absence of good faith in defendants in any respect.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.  