
    Virginia J. Ranken, Respondent, v. Michael Donovan and Cartwright McBride, as Trustees, etc., of the Last Will and Testament of Bessie C. Donovan, Deceased, and Others, Appellants.
    Second Department,
    November 16, 1906.
    Ejectment — evidence — production of deed by grantee imports a delivery thereof—presumption not impaired by oral evidence of delivery.
    When, in an "action of ejectment, plaintiff claims title under a will which has been put in evidence, and the defendants claim under a deed prior to the will, which they produce and put in evidence, the defendants are entitled to a verdict as a matter of- law, for the production of the deed by the defendants raises a presumption of delivery as of the date of the instrument.
    Nor is that presumption impaired by the introduction of oral evidence by the defendants that it was agreed that the grantor was to retain the use of the property during life, and that after the delivery of the deed it was given to a depositary to be held, and not to be recorded until the grantor’s death. A fee passed to the grantee whether or not the reservation of a life use by the grantor was valid.
    The fact that in a prior suit by the grantor against the' depositary to cancel a lease of the lauds made to him the grantor alleged title, which the depositary did not deny, does not discredit his subsequent testimony as to the delivery of the- deeds, as in such an action he could not question his lessor’s title.
    Appeal by the defendants, Michael Donovan and another, as trustees, etc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings, on the 21st day of December, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of December, 1905, denying the defendants’ motion for a new trial made upon the minutes.
    Action of ejectment. The plaintiff claimed under a specific devise of the land to her in her grandmother’s will. The defendants claimed under a prior deed of conveyance of the said grandmother.
    The plaintiff put the will in evidence and rested. The defendants produced the deed and put it in evidence. They also called the lawyer who drew it. He testified that the grantor instructed him that she wanted to convey the land in question and two other pieces (all she had) to her daughter Bessie, under whose will the defendants claim, and one other piece to Bessie’s infant child, but wanted to retain control of it for life; that she said that the deeds would be held by McBride until her death, and then put on record; that Bessie said she was willing that her mother should have the same control of the property for life as though she owned it; that the mother, daughter and McBride were all present with him; that the four deeds were then drawn; that the mother handed to her daughter Bessie the three made to her, and placed the one to the infant on its breast as it lay in its mother’s arms; that Bessie thereupon took the four deeds and handed them to McBride and said for him to take them and keep them until the mother died and then put them on record; that she passed, a dollar to.her mother for each deed. The defendants also called McBride who testified to the same things. There was no other witness of the transaction. .
    
      Martin W. Littleton [Addison S. Pratt, George G. Reynolds and David Teese with him on the brief], for the appellants.
    
      Jesse W. Johnson [A. E. Lamb with him on the brief], for the respondent.
   Gaynor, J.:

There was no motion by either side for the direction of a verdict, but the motion on the minutes for a new trial should have been granted. When the defendants produced and put in evidence the deed of conveyance under which they claimed, a presumption of fact at once arose that it was delivered as. of its date (Strough v. Wilder, 119 N. Y. 530). In this state of the case the plaintiff claiming under the will and "the defendants under the prior deed—' the defendants were entitled to the verdict as matter of law. But their learned counsel, not satisfied with this, would go further, and having .called the lawyer who drew the deed, and the other living witness to.the transaction, it was claimed for the plaintiff that such oral testimony raised a question of fact whether the deed was delivered with intent to pass, title, and on this question the jury found against the defendants. But the presumption of delivery was not impaired by the oral evidence. The parties arranged that the property was to' be conveyed, the grantor retaining the use for life, and the deeds were "delivered in pursuance of this arrangement. This was the oral evidence. It is not necessary to determine whether this oral arrangement was valid, for whether the deed vested full title presently, or only title subject to a life estate in the grantor, matters not. In either case it conveyed the fee presently (Hathaway v. Payne, 34 N. Y. 92). The leaving of the deeds with McBride during the grantor’s Jife was only to make certain that they should not be recorded.

Two years after executing the deeds the grantor made a lease-of all the conveyed real estate to McBride with a right of renewal for ten years more to the lessee. She afterwards brought a suit against him to cancel such lease. In her complaint she alleged that she owned the land. This was admitted by McBride in his answer; and on the trial he did not disclose in the witness box that the deeds had been made. These things do not discredit his present testimony. His answer was correct pleading. He could not raise an issue of her ownership. It sufficed that she had a life estate and could make a valid lease. An allegation in his answer that she had made the deeds would have been wholly irrelevant and would have raised no issue. He cannot be discredited now for having pleaded scientifically. The same is true of his failure to tell of the deeds. , He was not asked to and such a question would have been irrelevant. Failure to volunteer cannot discredit a witness (Huebner v. Roosevelt, 7 Daly, 111; Commonwealth v. Hawkins, 3 Gray, 463); and especially must this be so of irrelevant matter. But if the evidence of McBride and the lawyer were, suspected and discarded, there would still' be no evidence of the non-delivery of the deed, and the presumption of its delivery would prevail.

A similar case under another óf the deeds has been here before (Ranken v. Donovan, 46 App. Div. 225).

The judgment and order should be reversed.

Hirschberg, P. J., Jenks, Hooker and Miller, JJ., concurred.

Judgment and order reversed and-new trial granted, ■ costs to abide the event.  