
    Maria Ten Eyck and Cornelius H. Slingerland, App’lts, v. Catherine A. Witbeck et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Deed—Recobd-
    One T. conveyed a farm worth $20,000 to Ms wife tM-ough an intermediary for a consideration of $100, which was never paid, but the fact of such conveyance was not divulged nor the deed recorded for many years. Subsequently T. conveyed the same farm to Ms daughter, the defendant,, in consideration of the payment of ten dollars and the payment annually of the net profits thereof to himself and Ms wife and other daughter in certain proportions during their respective lives. This deed was recorded prior to the one first mentioned, and the defendant had no notice of the prior deed. Reid, that defendant was a purchaser in good faith and for a. valuable consideration, and that her deed, having been first recorded» must prevail.
    
      ■ Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury upon the trial at the Albany circuit.
    
      J. H. Clute and N. C. Moak, for app’lts; M. Hale, for resp’ts.
   Landon, J.

—The complaint was in the nature of ejectment, ■although framed as in equity. Both parties claimed title to a farm in the town of Coeymans, Albany county, Peter W. Ten Eyclc being the common source of title.

On September 21, 1871, Peter W. Ten Eyck conveyed the farm through an intermediary, John H. Carroll, to his wife, Elizabeth Ten Eyclc. The deeds of conveyance were acknowledged on that day and delivered, but were not recorded until January, 1883. The deeds expressed a consideration of $100, but none of it was paid. The farm was worth $20,000. Mr. and Mrs. Ten Eyck had two children, the plaintiff Maria, and the defendant Catherine, wife of Peter A. Witbeck. Mrs. Ten Eyck, at the time of her marriage with Peter Ten Eyck, which occurred in 1835, had a son of a former marriage, Cornelius H. Slingerland, then nine years of age, now one of the plaintiffs.

Mr. and Mrs. Ten Eyck had lived all their married life upon the farm, Cornelius living with them as a member of their family. He continued to live with them until he was forty years of age. He was industrious, and after he attained his majority substantially took charge of the farm and of his step-father’s business.. There is some evidence to the effect that Mrs. Ten Eyck brought to her husband $3,000 in money. After the deeds were made, Mr. and Mrs. Ten Eyck and their family lived upon the farm as before. The fact that Peter Ten Eyck had conveyed the farm to his wife was not divulged for some years.

When the conveyances were made they both said they did not want them recorded, as they did not want the children to know .about it. Mr. Ten Eyck, before they were made, told an old friend and advised that whatever he did would be found fault with, that he wanted peace, that he intended to deed or will his property to his wife and let her give it to or divide it among the children as she thought best. At the time the deeds were made he was seventy-six years of age, and his wife ten years younger.

On July 7, 1877, Peter W. Ten Eyck executed, acknowledged and delivered to the defendant, his daughter, Catherine A. Wit-beck, a deed of the same farm. This deed recites a consideration of ten dollars, which was then paid, and recites, “ also in consideration of the party of the second part paying over to the party of the first part annually the net proceeds of the property during his life, and if his wife survived him, one-third thereof •thereafter to her during her life, and another third thereof to his daughter Maria if she survived him during her life, and if she also survived both, then one-half thereof during her life. This deed was recorded December 5, 1879.

On January 9, 1883, Elizabeth Ten Eyclc, wife of Peter Ten Eyck, executed, acknowledged and delivered to the plaintiffs, Maria Ten Eyck and Cornelius H. Slingerland, a deed of the same farm. Peter W. Ten Eyck died in April, 1883, and Elizabeth, his widow, died in April, 1885.

The defendant, Catherine A. Witbeck, obtained possession of the farm, and the plaintiffs bring this action against her and her tenants in possession.

There was some testimony given upon the trial by the defendants with the view of showing that. Peter W. Ten Eyck was of' unsound mind, that he was unduly influenced by his wife to execute the deed to her in 1871, that the deeds to her were never actually delivered; also, that the deed from Elizabeth to the plaintiffs was never delivered.

"We have examined all this evidence, and although the learned judge submitted the questions of fact thereby suggested to the jury, and the jury thereupon found in favor of the defendants, we are constrained to say that in our opinion the evidence is utterly insufficient in that respect to sustain the verdict. It may be there is a scintilla of evidence in support of the surmise that Peter W. Ten Eyck was of unsound mind, that he was unduly influenced by his wife, that he never delivered the deed to her, and also that Elizabeth never delivered the deed to the plaintiffs ; but of evidence substantially tending to establish either of these propositions we find practically none.

The verdict therefore should be set aside as against the evidence, unless the defendant Catherine was entitled to recover as a matter of law under the recording act.

The evidence shows that at the time her father delivered her the deed she had no notice of his prior unrecorded deed to his-wife. As the defendant’s deed was first recorded, if she was a purchaser in good faith and for a" valuable consideration, her deed must prevail. 1 R. S., 756, § 1.

As an original proposition we should gravely doubt, whether the payment of ten dollars would suffice to defeat the title of the-prior grantee of a farm worth $20,000, although coupled with the implied promise of the later grantee to pay the net proceeds of the farm for a time as appointed by the grantor. This doubt-is strongly supported by two North Carolina cases, cited by the plaintiffs. Fullenwider v. Roberts, 4 Dev. & Bat., 278; Worthy v. Caddell, 76 N. C., 82, and the English cases therein cited. These cases are to the effect that a fair price is requisite; not necessarily a full one.

But in Hendy v. Smith, 49 Hun, 510; 18 N. Y. State Rep., 836, a case in which the consideration was only one dollar, the court, reviewing several cases in this state, sustained the deed first recorded, and held that the question was not one of the adequacy of the consideration, but of its character.

In the absence of any opposing decision in this state, we think . we ought to follow, as authority, the case last cited. The present seems to be a stronger case for the recorded title than the case last cited, in that the implied promise of the grantee to pay the-net proceeds as appointed by the grantor was valuable, Post v. West. S. R. R. Co., 123 N. Y., 580; 34 N.Y. State Rep., 484, and relieved the consideration of the imputation of utter inadequacy.

Judgment affirmed, with costs, but if the plaintiffs desire it, the order entered may recite that but for the recording act we would, have reversed the judgment.

Learned, P. J., concurs; Mayham, J., takes no part.  