
    Charles F. Little, Plaintiff, v. William H. Ferris, as Administrator, etc., Defendant.
    (Supreme Court, Cattaraugus Equity Term,
    May, 1914.)
    Deeds — when grantor in deed delivers it to third person — when title vests.
    Where the grantor in a deed hands it to a third person without reserving the right to revoke instructions that it be delivered to the grantee therein named after the death of the grantor, delivery to the grantee relates back to the first delivery, and the title vests in him as of the date the deed was handed to the third person.
    Action to have moneys in the possession of the defendant declared the property of the plaintiff, etc.
    George E. Spring, for plaintiff. •
    Charles D. VanAernam, for defendant.
   Brown, J.

On December 29, 1911, Frederick M. Little executed a warranty deed conveying to the plaintiff seventy acres of land, handed the deed to William A. Joslyn, stating, “ You keep it and deliver it to Charles F. Little at my death.” On January 15,1912, Frederick M. Little sold the timber standing on the seventy acres for $600, depositing the money to his credit in a separate account in a savings bank. On March 28, 1912, Frederick M. Little died, and shortly thereafter Joslyn delivered the deed to plaintiff. The timber was thereafter cut and removed from the land by the purchaser. In February, 1913, the defendant was appointed administrator of the estate of Frederick M. Little, deceased, obtained possession of the $600, the avails of the sale of the timber, and refused to deliver the same to the plaintiff. Whereupon this action was commenced for an adjudication that the $600' is the property of the plaintiff, and restraining the defendant from disposing of the same; the plaintiff’s contention being that the delivery of the deed to him on the death of Frederick M. Little related back to the date of its execution, and that title to the real estate passed to the plaintiff as of that date; that the grantor having sold the timber, the avails thereof became the property of the plaintiff. The defendant contends that the sale of the timber by Frederick M. Little, and the deposit of the proceeds of the sale to his own credit in the savings bank, was a revocation of the instructions to Joslyn to deliver the deed to the plaintiff upon the death of the grantor, to the extent of the standing timber, and that title to the timber could not vest in the plaintiff.

It has long been settled that a deed may be delivered by a grantor to a stranger with instructions that it be delivered to the grantee after the death of the grantor; and where no right to revoke such instructions is reserved such second delivery relates back to the first delivery and title passes as of the date of the first delivery. Hathaway v. Payne, 34 N. Y. 92 ; Campbell v. Morgan, 68 Hun, 490 ; Stonehill v. Hastings, 202 N. Y. 115.

In Stanton v. Miller, 58 N. Y. 192, the grantor did not make an absolute delivery of the conveyance to the custodian. On the contrary, he expressly reserved dominion over the deed and the right to withdraw it.

Tn Jackson v. Rowland, 6 Wend. 667, the custodian, at the time the deed was delivered to him, was not instructed to deliver the deed. When the instructions to deliver the deed were finally given, judgments had been entered against the grantor and the lands sold. The judgments were held to be a prior lien.

In Ranken v. Donovan, 46 App. Div. 225 ; affd., 166 N. Y. 626, the grantor specifically instructed the custodian to deliver the deed to the grantee (the defendant) upon the death of the grantor. After these instructions and the deposit of the deed with the custodian the grantor executed a last will and testament devising the premises to the plaintiff. It was there held that the defendant’s title vested at the time of the delivery of the deed to the custodian and took precedence over the subsequent devise to the plaintiff.

It was also held in the Ranken case that a deed executed by the defendant’s grantor after the delivery to the custodian of the defendant’s deed was not receivable in evidence on the question of Ranken’s intent in making the conveyance to the defendant. Under this authority the sale of the timber and the deposit of the avails in the savings bank to the credit of Frederick M. Little is no evidence that at the time he deposited the plaintiff’s deed with Joslyn he intended to reserve the right to revoke the conveyance of the standing timber.

The plaintiff is entitled to judgment adjudging that the avails of the sale of the standing timber are the property of the plaintiff, with costs.

Judgment for plaintiff, with costa.  