
    Mary Reynolds, App’lt, v. The City National Bank of Watertown et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    1. Married women—Deed from wife to husband.
    A conveyance from a married woman directly to her husband delivered after the passage of chap. 537, Laws 1887, is valid, although executed prior to the passage of said act.
    3. Same—Lien of vendor.
    Where a deed from a married woman to her husband was kept by her for several years, and then delivered for the express purpose of enabling him to raise money on the premises for use in his business, and she immediately joined him in incumbering the same, and a note was given by him to her for the consideration thereafter, which was sought to be enforced when it appeared that he could not continue his business, Held, that the transfer was not one which would give the wife the equity of a grantor’s lien.
    Appeal from judgment in favor of defendants.
    Action to set aside as void a conveyance given by plaintiff to her husband, or to enforce in her favor a vendor's lien for the purchase price.
    
      Hannibal Smith, for app’lt; Lansing & Lansing, for resp’ts.
   Parker, J.

We have no difficulty in adopting the finding of the court at special term that the deed from the plaintiff to her husband, bearing date January 13, 1885, was not delivered until June 28, 1889. The testimony that both parties gave before the referee in supplementary proceedings is much more reliable than that given under the pressure of the situation at the time this action was tripd, and is much more consistent with reason, and the mode in which their business was done. Before the referee, both testified that the deed was not delivered in 1885, and the plaintiff gave her reasons for retaining it. It is not at all probable that the statement of both was misunderstood, or inaccurately taken down; and it can hardly be supposed that they both deliberately, and without reason, then testified falsely, and now, for the first time, tell the truth as to the transaction. If the deed was delivered in 1889, it was not a void conveyance. The disability which existed in 1885 had been removed by chapter 587, Laws 1887, and the conveyance operated between herself and her hus-' band in the same manner that it would between herself and one not related to her. It does not depend for its validity upon the ratification of the agreement to convey made in 1885, or upon any ratification whatever, but it is in itself a new and executed contract, sufficient in form and manner of execution to convey real estate, and surely it is a matter of no importance when it was drawn up or executed. It was delivered in 1889, at a time when such an instrument was operative between them, and hence it cannot be set aside as void. It is claimed by the plaintiff’s counsel that, notwithstanding the act of 1887, the disability against a ' married woman’s contracting with her husband still continued. It may be that such statute did not enlarge the power of a wife ’ to make with her husband an executory contract to convey, but the question here is not whether her contract to convey could be enforced in 1889, but whether the conveyance which she then made was a void one. Certainly,'at that dale, all the disabilities that formerly rendered such a conveyance void had been removed, and therefore the title to her premises had been lawfully transferred to her husband, and he was in a position to lawfully convey or mortgage the same.

The question whether the transaction under which such deed was delivered was an actual and bona fide sale, so that the plaintiff ■ acquired a vendor’s lien on the premises for the unpaid purchase money, is a more difficult one. It is true that she had the title to the premises, and that at the time it was taken their pecuniary condition does not indicate that it was given to her in fraud of her husband’s creditors. It is also true that they both testify that the deed was delivered in consideration of his agreement to pay $3,000 for the premises; but yet, if such premises were recognized between themselves as the property of the husband, or as the product of their joint labor, in which both were interested, and the title to which was kept in such a position that it could be used as the property of either, as the exigencies of their business might require, and if it was conveyed to the husband under such an arrangement, then the plaintiff would not be within the-equity of the rule that gives to the vendor of real estate a lien upon it until his just demands for the purchase price thereof are satisfied. Pom. Bq. Jur„, § 1250. There are many things indicating that the parties did not, as between themselves, assume the ordinary relation of vendor and vendee, and particularly showing that a vendor’s lien for the purchase money was not contemplated between them. Tire deed was delivered for the express purpose, of enabling the husband to raise money on the premises for use in his business, and the plaintiff not only at once joined with him in putting a $2,000 mortgage thereon, but subsequently joined with him in further mortgaging it to the defendant, the City National bank. The whole course of their dealing, by which this property was acquired ; the unusual way in which the title was kept in her name on the record, and in his name in the house; her readiness to give him the title, and join with him in incumbering it; the fact that no evidence of a promise to pay the alleged purchase price was given or asked for when the conveyance was made, although on its face the deed expressed a consideration of only one dollar fully paid ; and the subsequent conduct of the parties, in giving a note for such purchase price, and seeking to enforce it by judgment and execution against his personal estate in advance of his creditors, as soon as it appeared that the husband could not continue his business, all indicate that it was not a sale of property such as would give the wife the equity of a grantor’s lien. An extended analysis of the evidence on this question is not necessary. It has been thoroughly done by the judge at special term. He has seen the parties under examination, and from all the evidence has been convinced that the sale claimed by them was never in fact made. The case does not present such a preponderance of evidence against his conclusions ■ as to warrant our interfering with them. Baird v. Mayor, 96 N. Y., 567; Devlin v. Greenwich Savings Bank, 125 id., 756 ; 35 St. Rep., 922; Beckwith v. N. Y. C. R. R. Co., 64 Barb., 308; Roosa v. Smith, 17 Hun, 138; Thompson v. Vroman, 49 St. Rep., 537. We do not discover any error in the admission or rejection of evidence which has worked any injury to the plaintiff, and on the whole case we conclude that the judgment is correct, and should be affirmed, with costs.

Hardin, P, J., and Merwin, J., concur.  