
    Angus McDuffie, App’lt, v. Adelia Clark, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    Deed—Grantee—Name.
    A deed was made in the name of David 0. Brown, and a bond and mortgage was executed in that name by David A. Brown, who was the father of David 0., who was an infant. There was evidence that the grantor had previously consented to make the conveyance to the child. Held, that this evidence, if admissible on account of the confusion of names, did not overcome the effect of the three instruments which, when construed together, show the intention to pass the title to the person who executed the mortgage, and who by his acknowledgement thereof declared that the name in which he executed it was his own.
    Appeal from a judgment entered on the verdict of a jury at the Cattaraugus circuit, and from an order of the same court denying the plaintiff’s motion for a new trial on the minutes.
    
      W. Woodbury, for app’lt; A. D. Scott, for resp’t.
   Dwight, P. J.

The action was ejectment for a house and lot in the village of Little Yalley; the plaintiff claimed title .under one David A. Brown, and the defendant' under one David 0. Brown. The opinion of the court, by Bradley, J., on a former appeal, 17 BT. Y. State Rep., 356, furnishes a full and succinct statement of the facts as they then appeared, and of the reasons for the conclusion, then reached, that the verdict in favor of the defendant was against the clear weight of the evidence. It was then considered that the effect of the deed and bond and mortgage, which were to be construed as parts of the same transaction, together with the attendant circumstances, was to demonstrate that title passed to the person to whom the deed was delivered and who executed the bond and mortgage for the purchase money; notwithstanding that in naming the grantee in the deed the initial letter of the middle name of his son, an infant of ten months old, was by some means substituted for that of the father, the names being otherwise the same, and the bond and mortgage were executed, and the mortgage acknowledged by the father in the same name as that employed in the deed.

The father’s name was David Alonzo Brown, though he was commonly known as David Brown, and the child’s name was David Clarence Brown. Both the father and child died within two years after the execution of the deed and mortgage. The plaintiff’s title rests upon a sale on execution of the interest of the father, and the defendant claims title as heir-at-law of the child.

The facts appearing on the trial now under review were the same as before, with the added testimony of Almon Brown; the father of David A. Brown, to the effect that two or three days before the execution of the deed he heard a conversation" between Ms son and Mr. Manley, the grantor, in which the latter consented to make the conveyance to the infant child of the former.

We do not think this evidence, if admissible, can have the effect to change the aspect of the case presented on the former review. If the conversation was had, as testified to, the only reasonable explanation of the transaction which actually followed seems to be that the parties had, in the meantime, changed their minds and decided that the deed should be made to the father and the mortgage executed by him. It is to be observed that, in the conversation related, nothing was said about a mortgage or the mode or time of payment of the purchase money; and if the parties ever contemplated a deed to the child it is probable that when it was decided that a mortgage should be given, it was also decided that the deed should be made to the purchaser himself, in order that he might give the mortgage.

The evidence shows that Mr. Manley, the grantor, was a man of experience in business; had been supervisor of his town for several years, and twice a member of assembly; that he was a dealer in real estate and was accustomed to draw his own contracts and conveyances, as he did in this case. It is altogether incredible that he should have accepted as security for two-thirds of the purchase money of the lot conveyed a mortgage executed and acknowledged in the name of Ms grantee by another person. Tire fact, if it was so, that the child had been previously spoken of as the grantee to be named in the deed, may afford an explanation, wanting on the other review, of the confusion in respect to the middle letter in the name of the actual grantee and mortgagor. The fact, which appears, that Mr. Manley endorsed all three of the instruments with the name “David Brown,” indicates that he paid but little attention to the middle letter, and the evidence shows that Mr. Brown was commonly known by that name.

The case furnishes an illustration of the reason for the general rule that evidence of negotiations preceding the execution of written instruments is not admissible to contradict or vary the effect of the writings themselves. In such cases it is presumed that the writings embody the final understanding and agreement of the parties, whatever their previous negotiations or intentions may have been.

In this case, even if the testimony of Almon Brown was admissible by reason of the apparent confusion of names, it cannot be regarded as overcoming the effect, as evidence, of the three instruments subsequently executed by the parties, and the circumstances of their execution. That effect, we think, remains unchanged since the case was last in this court, and we are still of the opinion that the clear preponderance of the evidence is in favor of the conclusion that the intention of the parties in executing and receiving the conveyances in evidence, was that title to the land should pass to the party who executed the mortgage, and who by his acknowledgement of that instrument declared that the name in which he executed it was his own.

For this reason the judgment and order appealed from should, be reversed and a new trial granted.

Judgment reversed and a new trial granted, with, costs to abide the event.

Macomber and Corlett, JJ., concur.  