
    Thomas Russell vs. Anna Russell and others.
    Where a deed, executed by the grantor to his brother, was given in contemplation of an arrangement which was afterwards voluntarily abandoned by the parties, but being left with the grantor’s counsel, was, without ever having been delivered, or any consideration paid, put on record by him by mistake, and the widow and heirs of the grantee, after his death, insisted that the deed was valid, and claimed to hold the premises under and by virtue thereof; KM that such claim was most inequitable, and the deed was declared null and void, and an entry directed to be made upon the record, stating that such deed was annulled by the judgment of the court.
    THIS was an action brought against the widow (who was also the administratrix) and heirs of Thomas Bussell, deceased, to have a deed, executed by the plaintiff to the said Thomas, declared null and void and the registry canceled. The plaintiff alleged in the complaint that on the 17th day of August, 1866, and prior thereto he was the owner in fee of certain premises therein described, situate on the corner of Thirteenth street and Eighth avenue, in the city of Hew York. That on or about that day the plaintiff entered into negotiations with his brother, Joseph Bussell, tó sell to him the said premises. That pending the negotiations with his said brother, he and his wife executed a deed of the premises in which his said brother was named as grantee, and left the same with his counsel, Henry P. Townsend, Esq., who was to draw all the papers between the plaintiff and his said brother. That he never delivered nor caused the said deed to be delivered to said Joseph Bussell; but that Townsend by mistake, supposing that the arrangement between the plaintiff and said Joseph Bussell was concluded, and was to be carried out, caused the said deed to be recorded. That the said deed was dated the 17th day of August, 1861, was made by Thomas Bussell, the plaintiff, and his wife to the said Joseph Bussell, and was recorded in the office of the register of the city and county of Hew York, in liber 847 of conveyances, page 91, on the 24th day of August, 1861. That before any final agreement and arrangement was concluded between Mm and the said Joseph Bussell, the whole matter fell through, and all intention to carry it out was given up. That at no time before, during, or after the said negotiations between him and the said J oseph Bussell were any papers passed between them, or delivered by either of them to the other, nor was any consideration paid by said Joseph Bussell to the plaintiff, of any kind or character for any purchase of said premises, or upon, or for said deed. That the said Joseph Bussell never claimed any interest in the premises by, or under said deed, or otherwise ; that he always particularly disclaimed any interest in said premises up to the time of his decease; and directed a deed to be drawn for him and Ms wife to execute, reconveying the said premises to the plaintiff, which deed his sicknees and subsequent death prevented him from executing. That before the execution of the deed first above mentioned by the plaintiff, and his wife, the plaintiff was in the possession of, and was the sole owner of the premises mentioned therein ; and that he has thence always been and now is in the sole and uninterrupted possession of said premises ; that said Joseph Bussell never at any time, in any manner or form, was seised, in possession, or had control thereof. That the said Joseph Bussell died intestate, on or about the 11th day of June, 1865, leaving a widow, Anna Bussell, and two infant children, to wit, Charles W. Bussell and J oseph F. Bussell, both under the age of fourteen years. The plaintiff further alleged that although the said deed never was delivered to said Joseph Bussell, and was improperly, and by mistake and error, recorded as aforesaid, and never did vest any title in said Joseph Bussell, and does not vest any title whatever in his said widow and children, still the same remains of record ; and is a cloud upon the plaintiff’s, title in and to said premises.
    He therefore demanded the judgment of the court that the said deed be declared null and void, and of no effect as against the title of the plaintiff to said premises, and that the register of the city and county of New York write upon, or opposite the record of said deed that the said deed is annulled by the judgment of this court. And for other and further relief. .
    The defendant, Anna Bussell, the widow and administratrix of Joseph Bussell, in her answer alleged : That her husband, when he died, was seised and possessed in entirety of the lands and premises mentioned and described in the complaint; and that his title and interest in the same appeared of record in the office of the register of the city and county of New York, and has been so for along time, and no proceedings have been, or were taken by said plaintiff, or any one else to impair, impeach or affect such seisin, right, title and interest, during the lifetime of said Joseph Bussell. That said J oseph Bussell having died as aforesaid, said piece or parcel of land descended and passed by inheritance in fee simple absolute, to the two children of said J oseph Bus-sell, who now so own the same, subject only to the dower therein of their mother, the widow of said Joseph Bussell. She denies each and every allegation in the complaint contained, inconsistent with the foregoing statements and allegations and not therein specifically admitted or denied. And the defendant for a further and' separate answer alleged that said plaintiff had not legal capacity to sue in this action, and had no seisin or interest in fee or agreement therefor as required by law, in the piece or parcel of land in said complaint mentioned, nor can any claim or charge of fraud upon said Joseph Bussell in his lifetime, or upon any of the defendants, nór any other wrongful act be made or asserted in respect to the acquisition of the title of said parcel of land. Wherefore she claims that the complaint be dismissed, with costs.
    The infant defendant's, by their guardian ad litem, put in ■an answer alleging that they were the only heirs at law of Joseph Bussell, and were the sole and only owners of the parcel of land mentioned and described in the complaint, subject only to the dower right of their mother, the said defendant Anna Eussell; and they denied each and every alie-' gation in said complaint contained inconsistent with the facts above alleged.
    [New York Special Term,
    October 22 1867.
    
      S. Sanxay, for the defendants.
   Clerke, J.

It is very clear that the deed, given by Thomas Eussell to his brother Joseph, was given in contemplation of an arrangement abandoned willingly by both parties. The deed was put on record by mistake of the attorney; the property which it purported to convey was néver claimed •by Joseph Eussell; but, on the contrary, repeatedly after the recording of the deed, within, I think, a short time before his death, he declared that the property belonged to his brother Thomas. The attempt of the defendant to retain the property, under such circumstances, is most inequitable.

Judgment for the plaintiff in conformity with the prayer of the complaint, with costs.

Clerke, Justice.]  