
    Eliza A. Munoz, Administratrix, etc., Resp’t, v. George Wilson et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Mortgage—Evidence—When bond must be produced on suit to FORECLOSE.
    It is only when a bond is shown to have accompanied a mortgage and contains the only apparent evidence of the debt to which the mortgage is collateral, that it must be produced or its non-production accounted for on the trial.
    2. Same—Delivery of—What constitutes.
    When there has been an unqualified delivery of the mortgage by the mortgagor to a third person, with the intent thereby to make it an operative obligation, an acceptance thereof by the mortgagee may, under circumstances like those arising in this case, fairly be presumed. It appeared that the mortgage was delivered to the plaintiff’s intestate at defendants’ request, that the defendant George Wilson delivered the mortgage into the hands of a third party, with authority to deliver the same to the plaintiff’s intestate, but never himself delivered the same to the plaintiff's intestate.
    3. Same—Preference of duly recorded mortgage over unrecorded DEED.
    On February 6, 1878, one owning the premises in question conveyed the same, with others, to his nephew, by deed of that date, acknowledged on the thirteenth day of the same month, and recorded on the following day. This conveyance was without consideration, and executed with intent to defraud creditors. The grantee, at the same time, executed a deed conveying the same premises to his grantor’s wife, and bearing even date with the first deed, and acknowledged on the same day with it, hut not recorded until October 4, 1881. He also, on October 2, 1879, by oirection of the grantor, made a mortgage of the premises in question to Mrs. Clay, the mother of this plaintiff; which was acknowledged December 27, 1879, and recorded on the thirty-first day of that month. The mortgage was made to secure an indebtedness of the original owner of the premises to the mortgagee. This action was brought to foreclose the mortgage, and validity was attacked on the ground that it had no legal inception. Held, that as neither the rights of creditors, purchasers or incumbrancers have intervened, it was competent for Mrs, Olay, or her representatives, to assent to and ratify the arrangement made for her security and enforce the mortgage for the benefit of her estate; that a duly recorded mortgage has a preference over a prior unrecorded deed, and there is no theory which can give the deed in this case any effect as against the claim arising under the mortgage in suit.
    4, Same—Evidence—Weight of—Testimony.
    The mere fact that the witness is the real party to an action, and interested in its result, is sufficient to require the credibility of his testimony to be submitted to a jury as a question of .fact, especially when the testimony is improbable in itself or inconsistent with other circumstances of the case.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the plaintiff rendered at special term.
    
      The facts will be found in the opinion.
    
      Josiah T. Marean, for app’lts; Wm. T. Gilbert, for resp’t.
    
      
       Affirming 6 N. Y. State Rep., 66.
    
   Ruger, Ch. J.

Michael K. Wilson was on February 2, 1878, the owner of the lands described in the complaint, and on some day subsequent thereto and prior to February fourteenth executed and delivered to the defendant George Wilson a deed of such property, and the grantee thereupon entered into possession and collected rents derived therefrom. The case does not show that any consideration was paid upon this transfer; but the trial court found, upon sufficient evidence, that the deed was executed and delivered by the grantor without consideration and with intent to hinder, delay and defraud the creditors of M. K. Wilson; and further found, at defendant’s request, that it was “upon a verbal, invalid and not enforceable trust to hold the same for the benefit of M. K. Wilson, and to dispose of the same as he might be directed by said Michael.” The latter being indebted to Mrs. Olay in the sum of $8,500, as found by the trial court, procured George Wilson to execute the mortgage in suit to her on October 2, 1879, and it was duly acknowledged December 27th and recorded on December 31st of the same year. This mortgage, after execution, was delivered by George to Michael, and was by him caused to be recorded upon the day stated.

The court found that the mortgage was delivered to the plaintiff’s intestate, and also found, at defendants’ request, that the defendant, George Wilson, delivered the mortgage “into the hands of said M. K. Wilson with authority to deliver the same to plaintiff’s intestate, but never himself delivered the same to the plaintiff’s intestate.”

It appeared that Mrs. Clay died on February, 16, 1880, within a few weeks after the mortgage was received .by Michael K. Wilson, and probably before sufficient time had elapsed to enable the register to record and return it to Michael. The court refused to find that no bond was executed by George to accompany the mortgage; but it appeared by the uncontradicted testimony of the mortgagor that such was the fact. No copy of the mortgage appears in the record, but on the oral argument made by the appellants’ counsel in the absence of the respondent’s counsel, who submitted the case upon a printed brief, we were furnished by the former with an exemplified copy thereof, and although such copy could not, under well settled rules, be properly received and used for the purpose of reversing a judgment, the appellant cannot complain if we consider it for the purpose of supplying the defects in the case caused by the neglect of the parties to print it therein. Day v. New Lots, 107 N. Y., 157; 11 N. Y. State Rep., 361.

This mortgage recites, among other things, that “the said George Wilson is justly indebted to the said party of the second part in the sum of $8,500 lawful money of the United States of America, secured to be paid by a certain bond or obligation bearing even date with these presents, in the penal sum of $17,000 lawful money as aforesaid, conditioned for the payment of the said first-mentioned sum of $8,500, on the 2d day of October, 1881, and the interest thereon, to be computed from the day of the date hereof at and after the rate of six per centum per annum,. and to be paid semi-annually therefrom and thereafter as by the said bond or obligation and the condition thereof, reference being thereunto had, may more fully appear; and it was further provided therein that “ the said George Wilson for himself; his heirs, executors and administrators, does covenant and agree to pay unto the said party of the second part, her executors, administrators or assigns, the said sum of money and interest, as mentioned above, and expressed in the condition of said bond.”

It further appears by the case that George Wilson, about the time of receiving the deed from Michael E. Wilson, executed a deed of the same property to Eliza, the wife of Michael E., as grantee therein, and delivered it to Michael, who retained it in his possession until after October 4, 1881, when he caused it to be recorded. The trial court found that this conveyance was also made without consideration and with intent to hinder, delay and defraud the creditors of Michael E. Wilson, and did not become operative as a deed until after the delivery of the mortgage in suit.

Several alleged grounds of error are urged by the appellants as cause for the reversal of the judgment rendered .in the courts below in favor of the plaintiff, which, so far as they are material, will be noticed in the course of the opinion. Among other things, it is claimed that the testimony of Michael E. Wilson should have been credited by the trial court and the facts, so far as they are testified to-by him, should be taken as undisputed and presenting-questions of law for the consideration of the court on appeal. The findings of fact by the trial court show that credit was not unconditionally given to such evidence, and we are of the opinion that the court did not err in that respect. Not only was such testimony more or less in conflict with the legal presumptions arising from the acts and admissions of Michael and the defendant George; but it was given after the death of the adverse party in interest and under the influence of a strong pecuniary interest in the controversy.

His testimony was also in several material respects contradicted by that of other apparently disinterested witnesses and subject to the discredit which attaches to a person engaged in a scheme to defraud his creditors. Abundant reason, therefore, existed for the suspicion with which the trial qourt regarded his evidence so far as it tended to promote his own interests. Indeed the mere fact that a witness is the real party to an action and interested in its results has been deemed sufficient to require its credibitability to be submitted as a question of fact, and more especially so when the testimony is improbable in itself or inconsistent with other circumstances of the case. Honegger v. Wettstein, 94 N. Y., 252; Elwood v. W. U. Tel. Co., 45 id., 549; Kavanagh v. Wilson, 70 id., 177; Gildersleeve v. Landon, 75 id., 609.

There is therefore no reason in the assault made upon the judgment growing out of any fact testified to by Michael K. Wilson alone. The trial court could in the exercise of its discretion properly discredit the whole of such portions of his evidence as it disbelieved and give credit thereto only so far as it deemed it in harmony with other facts and circumstances of the case.

It is also urged that the non-production of a bond by the plaintiff on the trial is fatal to her right to recover, and we are cited to the case of Bergen v. Urbahn (83 N. Y., 49) as authority for this proposition. We think, under the facts above referred to, the case cited is an authority for the plaintiff. The learned judge writing the opinion in that case, referring to and approving the case of Goodhue v. Berrien (2 Sandf. Ch., 630) says, there the mortgage was given to secure sundry liabilities incurred for the mortgagor. This appeared by its terms; and although it also referred to a bond, it was proven that no bond was in fact given. The case now in hand contains neither of these facts.” It is only, we think, when a bond is shown to have accompanied a mortgage and contains the only apparent evidence of the debt to which the mortgage is collateral, that it must be produced, or its non-production accounted for, on the trial. The theory upon which this is required is that the possession of the collateral security alone furnishes no conclusive evidence of the ownership of the debt secured thereby, as it is the mere incident of the bond, and, non constat, the bond may have been transferred to another party who, in that event, would be entitled to the possession of the collateral security. Merritt v. Bartholick, 36 N. Y., 44; Langdon v. Buel, 9 Wend., 80.

The reason of the rule wholly fails when there has never been a bond, or when the existence of and liability for the debt secured is proved by the admissions and covenants con-tamed in the mortgage. The mortgage in this case expressly admits the existence of an indebtedness by the mortgagor to the mortgagee, and although it also states that it is secured to be paid by a bond, that recital is disproved by the positive testimony of the mortgagor. The mortgage also contains an express covenant to pay to the mortgagee, her executors, administrators or assigns, “the said sum of money and interest as mentioned above and expressed in the condition of the said bond.” The mortgage further authorized its foreclosure if default shall be made “in the payment of the said sum of money above mentioned or the interest'that may grow due thereon.”

Each one of these latter clauses refers as well to the sum admitted therein to be owing by the mortgagor to Mrs. Clay, as to the sum also stated to be expressed in the bond, and renders the reference to the bond unnecessary and superfluous.

That such a mortgage is a valid security and authorizes its foreclosure, upon default, and a judgment fora deficiency against the mortgagor, is fully sustained by the authorities. Jones on Mortgages, section 72: Goodhue v. Berrien, 2 Sandf. Ch.. 630.

We are, therefore, of the opinion that the non-production of the bond was sufficiently accounted for and afforded no ground for denying the relief sought by the plaintiff.

The appellant, however, insists that the mortgage in question was never delivered to the mortgagee and therefore did not become a valid instrument. It is undoubtedly a requisite to the validity of such an instrument, that it should not only be delivered, but also accepted. The contention is founded upon the assumption that the evidence of Michael K. Wilson must be taken as uncontradicted evidence, and as establishing affirmatively the fact of non-delivery.

As we have seen, however, the trial court might properly discredit his evidence in that respect, and did so upon this point by finding that the mortgage had been delivered. We think there was sufficient evidence in the case to support this finding. That the mortgage'was executed and delivered by George to Michael Wilson with intent to effectuate a delivery to Mrs. Olay, and thus secure the debt admitted to be due her from the mortgagor, is plainly inferable from the terms of the mortgage and the acts and conduct of the parties. Certainly no other purpose can be imputed to the mortgagor, for it cannot be assumed that he supposed he was engaged in an idle ceremony intended to have no legal effect.

He must be assumed to have intended just what his acts and conduct imputed, viz.: To give Mrs. Olay security for an indebtedness owing by him to her arising out of his assumption of his uncle’s debt. In this transaction Michael K. assumed to represent the mortgagee, and when George delivered the mortgage to him it was delivered to him as the agent of Mrs. Clay and with, the expectation that he would deliver it to her. So far as George was concerned that delivery was intended to be unconditional' and effectual, and to make the instrument an operative security in the hands of Mrs. Clay beyond his power to recall. Verplanck v. Sterry, 12 John., 536. Michael was simply the messenger through whom the ultimate delivery was to be effected, and as no permission express or implied, was conferred upon him to retain it, he had no authority to change its terms or withhold its delivery.

Assuming the validity of the transfer from Michael to George, the acceptance of this mortgage by Michael would have constituted a good payment pro tanto of the purchase price of such land to him by George. Murphy v. Briggs, 89 N. Y., 450.

We think that when there has been an unqualified delivery of a mortgage by the mortgagor to a third person, with intent thereby to make it an operative obligation, an acceptance thereof by the mortgagee may, under circumstances like those arising in this case, fairly be presumed. The head note in Church v. Gilman (15 Wend., 656), states the law of that case as follows: “Delivery is essential to the validity of a deed; but the delivery need not be to the grantee in person; it is enough if the deed be delivered to a third person for the use of the grantee. If the delivery to the third person be absolute, the grantor not reserving any future control over the deed, the estate passes; the assent of the grantee to accept the conveyance being presumed, from the fact that the conveyance is beneficial to him.” The doctrines of this case were recognized in the case of Gifford v. Corrigan (105 N. Y., 223; 7 N. Y. State Rep., 7). See, also, Elsey v. Metcalf, 1 Denio, 323.

It was said in Jacksons. Perkins (2 Wend., 317), “arecorded deed may be used as evidence without further proof—proof of the due execution of a deed, and of its having been recorded, is perhaps prima facie evidence of its delivery.” But it was further said that this presumption might be rebutted by the grantee.

In Tomkins v. Wheeler (16 Peters, 118), it was said in reference to an assignment for the benefit of creditors: “ This deed is absolute upon its face, without any condition whatever attached to it; and being for the benefit of the grantees, the presumption of law is, in the absence of all evidence to the contrary, that the grantees accepted the deed.” And it was further said: “It is laid down in Sheppard’s Touchstone, 58, that if a deed be delivered to a stranger for the use of the grantee, without any condition annexed, making it an escrow, it is a delivery to the grantee.” See, also, 5 B. & C., 692. The chancellor said in The Lady Superior, etc., v. McNamara (3 Barb. Ch., 378), “a deed may be delivered to a stranger, for the grantee named therein, without any special authority from the grantee to receive it for him.

And if the grantee assents to it afterwards, the deed is valid from the time of the original delivery. Omnis ratihabitio retro trahitur et mandato seu lieentia equiparatur. Wing. Max., 485. It is upon this principle that it has frequently been held that a delivery of a deed to the proper recording officer to be recorded, if intended to vest the title immediately or absolutely in the grantee, either as a trustee or otherwise, is a valid delivery, if not afterwards dissented from by the grantee.”

In Lawrence v. Farley (24 Hun, 293) it was held, “ that in the absence of any evidence to the contrary, the fact that the instrument was found upon the record duly acknowledged or attested, was prima facie evidence of its delivery. ”

In Fisher v. Hall (41 N. Y., 421) the opinion states that “it is not necessary that the grantee, or his agent or servant, should be present at the execution, in order to have such a delivery of the instrument made as will give it operative vitality and effect. But it is necessary that it should be placed within the power of some other person for the grantee’s use, or that the grantor shall unequivocally indicate it to be his intention that the instrument shall take effect as a conveyance of the property, in order to have it produce that result.”

In Rathbun v. Rathbun (6 Barb., 103) the late Judge Allen, writing the opinion, said in a case where the plaintiff had executed a deed to his father of his own volition and without the knowledge of the latter, and delivered it to the county clerk for record,.that “its delivery to the clerk of the county for the use of the defendant was a perfect delivery by the plaintiff, and upon acceptance by the defendant the deed took effect from the time of such delivery.” See Jackson v. Goodell, 20 Johns., 187.

The presumption of delivery arising from the recording of a deed by a grantor is assumed by Church, Ch. J., in Knolls v. Barnhart (71 N. Y., 474). See, also, Moore v. Giles, 49 Conn., 570.

As neither the rights of creditors, purchasers or incumbrancers have intervened, we are of the opinion that it was competent for Mrs. Clay, or her representatives, to assent to and ratify the arrangements made for her security and enforce the mortgage for the benefit of her estate. In Murphy v. Briggs (89 N. Y., 452), it was held that a mortgage given by a fraudulent grantee, at the request of his grantor, to the creditor to secure the debt of such grantor, if duly recorded, was entitled to preference even over the claims of a subsequent purchaser.

A duly recorded mortgage has preference over a prior unrecorded deed, and there is no theory of this case which can give to Mrs. Wilson’s deed any effect as against the claim arising under the mortgage in suit. Murphy v-Briggs, supra.

It follows that the judgment should be affirmed.

All concur.  