
    J. Austin Mace, Appellant, v. Samuel Thayer and Others, Defendants, and Esther J. Lockwood, Respondent.
    
      A,deed, the, consideration for which the grantees agree to pay to-the grantor’s daughter — when it creates an irrevocable gift.
    
    Where a grantor procures to be inserted in his deed a provision requiring the grantees, as the consideration for the deed, to pay to the grantor’s daughter (a married woman of full age, not dependent upon him for support, and to whom he is nót indebted) a certain sum which shall remain a lien upon the premises until paid, and delivers to her a copy of that portion of the deed containing a. description of the premises conveyed and the condition in her favor, the transaction constitutes an irrevocable executed gift of such sum, and the grantor has no power, by a quitclaim deed subsequently executed to the grantees, to exonerate them from their obligation' to pay the stipulated sum to his daughter, and to require it to be paid to himself.
    Parker, P. J., and Herrick, J., dissented.
    Appeal by the plaintiff, J. Austin Mace, from a judgment of the Supreme Court in favor of the defendant Esther J. Lockwood, entered in the office of the clerk of the county of Albany on the 12th day of September, 1899, upon the report of a referee.
    This action was brought by the plaintiff to foreclose a mortgage executed by' the defendants Thayer to one Winters,, the plaintiff’s. assignor, to secure the payment of the sum of $1,000, with interest.. The defendant Lockwood claims k lien upon the land prior to the plaintiff’s lien, arising under a deed by which the defendants Thayer originally obtained title to the land. This deed was executed by Samuel Green, the grandfather of the defendants Thayer, who was also the father of the .defendant, Lockwood, upon the loth day of , Hovember, 1880, The consideration, expressed in the deed ivas $850, to be “ paid in manner, hereinafter provided.” Under the deed a life estate was reserved to Samuel Green. The deed then provided: “ The said Amasa and Samuel Thayer, their heirs or . assigns, shall, within six months after the death of- the said Samuel Green, pay to his daughter Esther J. Lockwood, wife of Horace Lockwood, the sum of eight hundred and fifty dollars, the above-named consideration for the premises herein described; and it further provided and intended that the above-described premises are conveyed on the condition that the said sum of eight hundred and fifty dollars shall be and' continue a lien upon said premises .until - paid.”
    On the same-day Samuel Green and wife executed another deed to two other grandsons,, conveying, different premises, the consideration being $650. This deed also contained the same conditions as above recited, except that $650 is used instead of $850. Samuel Green retained these deeds in his possession until in or about the month of March, 1882, when they were delivered to the grantees and were by them recorded. At the time of the delivery of' these-deeds - to the grantees Samuel Green delivered to the defendant Lockwood a paper' which had upon it that part of the deed containing a descr-ip- ■ tion of the premises conveyed and the condition that Samuel Green was to hold a life estate and the further condition in favor of the-defendant Lock-Wood, which is above quoted. At that time, addressing- the defendant Lockwood’s husband and herself, after having handed the paper to the defendant’s husband, he said: “ I have deeded two places away and have made a reservation in those two places for you, here is a copy, take it and retain it. * * * I told him it was not a full and complete copy; he said it contained the contents of what it was intended for; the deed would show the rest, which was on record.”
    Thereafter Samuel Green executed a quitclaim deed to the defendants Thayer, by the «terms of which lie exonerated said defendants from the payment of these moneys to Esther Lockwood and required "the payment of the moneys to himself. In order to raise these moneys to pay the said Green, the defendants Thayer made the mortgage to the plaintiff’s assignor, which is here sought "to be foreclosed.
    
      P. C. Dugan, .for the appellant.
    
      L. H. Bevans, for the respondent.
    
      
       Siccontained
    
   Smith, J.:

The answer to a single question will determine this appeal. .After having made and delivered the deed to the defendants Thayer with the reservation in behalf of the defendant Lockwood, was Samuel Green authorized to revoke the same? The referee has found that Samuel Green at the time intended to make an absolute gift to the defendant Lockwood and did not intend to make a testamentary disposition which was to be revokable. This finding is, we think, based upon abundant evidence, and, if the question involved be one of fact, the appeal must fail.

The appellant, however, urges, first, that there is no privity between Samuel Green and the defendant Lockwood, without which no right is given to the defendant Lockwood. If the fact assumed be true, the legal conclusion must follow. Authorities are 'abun■dant in support of the contention that to give a right of action to the beneficiary in whose behalf, as a third party, the promise is made, there must be privity between the promisee and the third person. In the case at bar there was no debt owing by Green to Mrs. Lockwood. While she was his daughter,, she was of age and married, and was not dependent upon him for support. Without an indebtedness of the promisee to the beneficiary, and with no obligation to support her, she is driven to the position that there was a complete executed gift to her of this indebtedness, in which case the necessary privity is by law deemed to exist. (Fulton v. Fulton, 48 Barb. 581.) If, therefore, there can be found the elements of a complete gift to the defendant Lockwood of the obligation of the. defendants Thayer, such gift was irrevocable, and the attempt by Samuel Green thereafter .to revoke the same was futile,, , .' -

The authorities fire numerous as to what constitutes a valid- gift inter vivos'. It is settled that that cannot be created by mere words. There must be some form of delivery. It is equally well settled, however,, that there is no property, real or personal,, which cannot be the subject of a gift. If, therefore, a party in attempting to make ..a gift has done all that can be done, it would seem that the gift should be deemed completed. ' In the case at bar Samuel Green by his own deed made the obligation of the defendants Thayer payable, -to: the defendant Lockwood. More fully to secure the same he made the obligation a lien upon the land until it was paid'. He made a copy of that part of the deed by which the benefit was reserved to the defendant Lockwood, and- delivered it to her with-the declaration of what he had done in her behalf. ' This was by the defendant Lockwood accepted. What more, then, could he have done to make complete that gift ? He could not- deliver the -deed because the deed belonged to the grantee. He could not have assigned the debt to her because, by his own grant, he had made the-debt hers iri so many words. Ho paper expressing his intention could be stronger than the words of the grant itself, together "with" the delivery of a copy to her and her acceptance thereof. It would seem, therefore, upon principle, that Samuel Green completed a valid gift to the defendant Lockwood which was irrevocable.

These conclusions are not without authority.. In Fulton v. Fulton (48 Barb. 581) one Fulton. made an agreement with his two daughters for the sale of real and personal property. The consideration to be • paid was five promissory notes each for .-the- sum of" $500, payable to the three sons and two daughters of Fulton at’ the decease of -his wife. These notes were afterwards canceled, and Fulton caused the makers -to execute new notes in renewal, and signed a paper which stated that he- intended that .the new notes should "be considered by his children in full of their shares in property which he had or ever had had. It was there held that the transaction transferred the legal title of the debts represented in the notes. In.the opinión "óf Gilbert, J., in that case, an extract, from Lord Justice Knight Bruce in Kekewich v. Manning (1 De Gex, M. & G. 187) is quoted : “ ‘It is, Upon legal and equitable principle clear, that a person sui juris, acting freely, fairly, and with sufficient knowledge, ought to have and has it in his power to make, in a binding and effectual manner, a voluntary gift of any part of his property, whether capable or incapable of manual delivery, whether in possession or reversionary, or howsoever circumstanced.’ ” Theopinion again reads: “ The intestate caused the notes to be made payable to his children, who are named therein as payees, respectively. This transferred the legal title to the debts represented in the notes; and with the accompanying declaration contained in the agreement and paper aforesaid, furnishes satisfactory evidence that" there was a delivery of them to the payees, and that the possession of them afterwards by the intestate was as trustee for them.” Again : “It is only when something remains to he done by or in behalf of the donor, which is not done before his death, that the gift fails totolee effect^ Again : “ ‘ Delivery * * * ' in this, as in every other case, must be according to the nature of the thing. It may be constructive. It must be an actual delivery so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject.'

. Further, some support for the respondent’s contention would seem to be found in the case of Williams v. Fitch (18 N. Y. 546), where the trustee of a fund prevented the making of a will and promised.to hold the property for the intended beneficiary, and it was held that that beneficiary might sue for the fund as for moneys had and- received. In Smith v. Perine (121 N. Y. 384), where a son, upon his death bed,- said that he did not desire tó make a will, but wished that his property, which was in the charge.of his father, should be equally divided between the father and the mother, to which the father agreed, it was held that, after his death, the mother might recover her share of the property from the father.

Flor do the authorities cited by the appellant Hold, a different rule. In Townsend v. Rackham (143 N. Y. 516) the beneficiaries did not assent to or even know of the gift before its revocation. That a gift to be complete must be accepted is unquestioned law. In Guy v. Langdon (84 Hun, 219) the title of the property did not pass from the grantor. There was.merely an agreement to transfer and an agreement by the other party to the contract to give to the. sister which was not accepted by the sister, and hence there was no valid gift. In Kelsey v. Cooley (11 N. Y. Supp. 745) no notice was given to the beneficiary of the provision in his favor and the mortgage remained in the hands, of the grantor, and was not delivered to -the beneficiary. The cases cited by the appellant to show that there must be privity in order to authorize a recovery are unquestioned. No case is cited, however, which holds that such privity does not exist where there has been a complete executed gift of the debt. , ■

We conclude, therefore, that the gift to the defendant Lockwood having been completed was irrevocable, and the case was properly decided by the referee.

All concurred, except Parker, P. J., and Herriok, J., dissenting-judgment affirmed, with costs.  