
    Byron J. Strough, App’lt, v. George Wilder, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 11, 1890.)
    
    Reoobdixs act—1 R. S., 788, § 137.
    Susannah Wilder, m her lifetime, executed and delivered an 'anacknowledged deed to defendant, who took possession of the property. Plaintiff claimed under deeds made by heirs of Susannah, on the ground that defendant’s deed was void under the statute, 1 R. S., 738, § 137, which declares that an “unacknowledged deed shall not take effect as against a purchaser or incumbrancer until so acknowledged.” Held, that plaintiff was not a “ purchaser ” within the meaning of the statute. That so far as Susannah Wilder was concerned she had parted with her title before death and her heirs took no title to the property.
    Appeal from judgment of supreme court, general term,, fourth department, affirming judgment entered on report of referee, dismissing complaint.
    
      Wayland F. Ford, for app’lt; Watson M. Rogers, for resp’t.
    
      
       Affirming 22 N. Y. State Rep., 480.
    
   Andrews, J.

The finding of the referee that Susannah

Wilder executed and delivered to the defendant the deed of June 20, 1855, is supported by evidence and has been confirmed by the general term. The execution of the deed by the grantor was. proved by two witnessses who were present at the time, and no attempt was made on the trial to show that the signature 'to the-deed was not genuine. The fact of delivery was not directly proved by an eye witness. But the defendant produced the deed, and the possession of a deed by the grantee is prima facie evidence of delivery, where there is nothing to impeach the bonafidesof his possession. The other circumstances proved on the ¡Dart of the defendant confirm the presumption of delivery arising from possession of the deed. It was shown that it was drawn by a scrivener, pursuant to the directions of the grantor. The sister of the defendant testified to declarations of her mother, the grantor, to the effect that she intended that the son should have the. lot in question. She, also, testified that from the time of the execution of the deed until the mother’s death, several years thereafter, the deed was in the custody of the defendant and was kept, by him in a box with his other papers.

The defendant’s wife was permitted, without objection, to testify to the same fact. The defendant rented the house, paid taxes and made repairs on the premises, and during his mother’s life, after the deed had been executed, exercised such control of the property as usually attends ownership.

If the evidence on the part of the plaintiff can be regarded as. casting any' doubt upon the point whether there was an absolute delivery of the deed, with intent to pass the title to the property, we are "concluded by the finding in favor of the defendant. The. plaintiff claims title to an undivided part of the premises in question under deeds from some of the heirs of Susannah Wilder, who died intestate, July 15, 1868, executed after her death. The deed from Susannah Wilder to the defendant was neither acknowledged by her nor was its execution attested by a subscribing witness. The plaintiff insists that for this reason the deed was void as to the plaintiff under the statute, 1 Rev. Stab, 738, § 137, which declares that an unacknowledged and unattested deed “ shall not take effect as against a purchaser or incumbrancer until so acknowledged.”

The conclusive answer -to this claim is that the plaintiff is not .a purchaser within the meaning of the statute. The word a purchaser ” in this statute means one who derives title by purchase from the grantor in the unacknowledged and unattested deed, or from one who, himself, is mediately or immediately a purchaser from such grantor. The word purchase, as designating the'origin and nature of title to real property, has a technical but well settled meaning. It includes every mode of acquisition of an estate in land known to the law, except that by which an heir on the death of his ancestor becomes substituted in his place as owner by operation of law. Burrill's Die., Tit. Purchase. The heir who takes by descent is not a purchaser in the eye of the law, and does not hold the estate descended by purchase. He may, when he has come into the inheritance, originate a title by purchase, upon his conveyance to another, but his own title is not such. The statute uses the word purchase in its-legal sense. -It is well settled that the title under an unacknowledged and unattested deed duly delivered is good as between the parties. This is so both under the statute and at common law. Wood v. Chapin, 3 Kern., 509; Dole v. Thurlow, 12 Metcalf, 157. The grantor -cannot reclaim the estate conveyed, in contravention of his deed, nor can his heirs. Both are bound by it. The statute does not aid the grantor’s heirs, for the reason that they are not purchasers, and as to them the statute has no application.

On the death of Susannah Wilder she was neither seized nor had she any title to the land in question, and the heirs took no other estate by descent than such as was vested in her at her death. Their conveyance to the plaintiff conveyed nothing, because they had no interest to convey. The defendant’s deed, which was good as against Susannah Wilder, was good also against her heirs or those claiming title from them.

This disposes of the cas'e. We think it unnecessary to consider whether the exception taken to the question put to the defendant as to the time during which he had possession of the deed, was well taken. It would be difficult to sustain the ruling under our recent decision in Clift v. Moses, 112 N. Y., 426 ; 21 N. Y. State Rep., 777. Excluding, however, the defendant’s evidence on this point, there is left the uncontradicted evidence of two unimpeached witnesses to the fact that the deed was in his possession after its execution, during his mother’s life.

We find no error in the prejudicial to the plaintiff, and .the judgment should be affirmed.

All concur.  