
    Francis G. Moore, as Executor of and Trustee under the Last Will and Testament of Grace E. W. Moore, Deceased, Respondent, v. Anthony Van Arsdale Winans, Appellant.
    
      Release — when paroi evidence is inadmissible to shoio that it was to be void unless exemted by others — testimony insufficient to show the delivery of a release to have been conditional.
    
    An instrument conveying real property, apparently complete upon its face and which must necessarily be under seal, cannot be delivered to the grantee upon a paroi condition.
    The statement of a witness that his wife received a letter inclosing a release in which she was requested to sign the release, and by which it was stated that other members of the family were going to sign, and that unless she signed and they all signed, it would be void, and that the wife executed the release and sent it to the writer of the letter, does not show that the release was delivered on any condition.
    Appeal by the defendant, Anthony Yan Arsdale Winans, from a judgment of the' Supreme Court in favor of the plaintiff, entered 'in the office of the cleric of the county of New York on the 27th day of July, 1897, upon the decision of the court rendered after a trial at the New York Special Term.
    
      William Man, for the appellant.
    
      Everett P. Wheeler, for the respondent.
   Rumsey, J.:

On the 9th of November, 1893, Mr. ■ Anthony Y. Winans, the father of the defendant, died, leaving a last will by which, among other things, certain devises were made to the defendant and to one Grace E. W. Moore, the plaintiff’s testator. The precise nature of the devise to Mrs. Moore it is not necessary to consider further than to say that she took by the will an interest in the real estate of which the testator died seized. This will was admitted to probate in this county in the early part of the year 1894. In the fall of that year there was delivered to the defendant a release signed by one W. G.Winans and Grace E. W. Moore, by the terms of which they released and quitclaimed to the defendants all their right, title and interest in, and all claim which they had or could have upon the estate of Anthony Y. Winans. The circumstances under which that release was delivered will be considered later so far as it may be necessary to do so. , After Mrs. Moore’s death this action was brought, in which her executor aslcs for a judgment of the court setting aside the release, upon the ground .that it was signed by Mrs. Moore upon the representation that all the relatives, devisees and legatees of Anthony Y. Winans, deceased, were to join in the execution of the papers, or otherwise that the said writing was not to be considered as a binding obligation on those who did execute it.

It is' alleged in the complaint that it was executed by Mrs. Moore in reliance upon these representations, and was delivered upon the condition that the defendant was to procure the signatures of all the relatives, devisees and'legatees to the said writing, and to cause them to join in the execution thereof, or otherwise the said writing was to be void and of no effect. That it was delivered upon any such condition was denied by the defendant, and the case came for trial upon the issue thus formed. Mrs. Moore being dead, of course the defendant was not competent, as a witness to testify to any transactions between himself and her, .and probably for that reason his side of the case in that regard was not given. So far as it was asserted that the writing was delivered upon a condition, the case stood solely upon the testimony of William W. Moore, the husband of Grace E. W. Moore. The learned justice before'whom the case was tried concluded that the paper was delivered upon the condition that other members of the family should sign it, and. that it should be void until all had signed it; and that as it was not signed by the other members of the family it was consequently void, and judgment was ordered setting it aside. From that judgment this appeal is taken. There is no question or dispute between the parties that the law is that delivery of a completed deed cannot be made to the grantee conditionally, and that if such a delivery be made to him upon any condition, the delivery operates unconditionally and at once, and.the condition is unavailable. (Worrall v. Munn, 5 N. Y. 229; Blewitt v. Boorum, 142 id. 357, 363.)

In the case last cited the rule was limited somewhat from what it had been supposed generally to be, and the court held that it could only be applied to an instrument which was necessarily required to be under seal, and it did not apply to any instrument simply because of the fact that it was sealed, when it was not necessary that it should be under seal to make it effectual; but as thus limited the rule was stated to be well settled in this State. It must be said, too, that the rule only applies to a paper which is complete upon its face, and not to one which is incomplete, because it is insufficiently executed, or because it is apparent upon its face that it was. not intended to take'effect, In either off those cases the instrument, either because it is incomplete or because it is evident that it is not to be effectual upon delivery, does not take effect until either it is completed or the .conditions come to exist upon which its validity is made to depend. But as the rule now exists and is limited in this State, that an instrument apparently complete upon its face which must necessarily be under seal, cannot be delivered to the grantee upon a paroi condition, it must be deemed to be well settled. This is not merely a technical rule as has been suggested, but it is founded in good sense and based upon a proper regard for the soundness of titles and the interest'of those who deal in them. It is necessarily applied almost entirely to transactions in regard to real estate, and the effect of it is, when one has made a deed of real estate and delivered it to the grantee, who thereby becomes possessed of the power to use it, that a grantor cannot overthrow the title thus created by any assertion that he did not intend to do precisely what he did do when the title was delivered. The question here is whether under the'circumstances that rule must be applied in this case. It is conceded in the casé that the testator, Anthony Y. Winans, died seized of real estate in- the city of blew York. This release then, to be operative, must necessarily have been under seal, as it was; and, therefore, it comes within the rule as limited by the case of Blewitt v. Boorum (supra). That the paper was delivered by Grace Moore to the defendant cannot be denied. Her husband testifies that she sent it to the defendant. It appears that, the defendant had it in Ms possession. It is alleged in the complaint that it was delivered, but upon a condition. There can be no- doubt, therefore, that the paper was in fact delivered to Winans by Mrs. Moore. Was it then a complete paper within the rule ? An examination of it shows that it was not dated; that after a recital of the death of Anthony Winans, leaving a widow and son surviving him,, and of the will and codicil purporting to dispose of the property, it proceeds: “ And we, relatives of the said Anthony V. Winans, wish,” etc. Then it proceeds, “Now, in consideration of one dollar to each of the undersigned in hand paid by Anthony Van Arsdale Winans, son of Anthony Y. Winans, we do hereby release and quitclaim to him all our rights, title and interest in, and all claim we have or can have, to all and singular the property of every kind, and nature that belonged to said Anthony Y. Winans at the time of his death, to-have and to hold the same to him absolutely.” This paper was. sworn to by Mrs. Moore on the 27th day of October, 1894, in these-words: “Grace E. W. Moore, being duly sworn according to law,, says the foregoing statement signed by her and W. G. Winans is-true of her own knowledge.” As the name of W. G. Winans. does not appear in the paper anywhere else than where it is signed, it must be assumed that it was so signed before this affidavit was made by Mrs. Moore. It was, therefore, signed by the two persons at the time it was delivered to' the defendant, and each one of those persons answered the description of a relative of Anthony Y. WinansThere was not -upon the paper anywhere any blank left for the insertion of any other names, nor anything from which it could be inferred that any other person was to sign it. As it stood, after having been signed by Mrs. Moore, it was an. unconditional release by more than one person of the interest in certain property, and it was. signed by two persons. There can be no doubt, that, standing by itself, it was a perfect instrument so far as it went. It. was witnessed as to one of those persons, and was acknowledged by the-other, so that it was sufficiently executed for all purposes. If there had been cause to use it in any legal proceedings, the mere presentation and proof of the signature would have required a holding that it was effectual for the purpose for which it was intended, and noparol testimony needed to be given to show that it operated as to-those two persons who signed it. It was, therefore, a perfect, instrument in itself.

' It is said, however, that this instrument was not complete because it was intended to be signed by other relatives. But nothing of' that sort appears upon the face of the instrument. Reading the-'instrument, and depending upon that alone, it would -be impossible to say that any other relatives than the two who signed it were-expected to sign it or had .any interest in the will; or that there were any other devisees in the will or even that there were any other relatives. These things can only be made to appear by paroi testimony that there were other relatives or other persons interested in ■ the will; -and in the absence of such testimony the paper is a complete and perfect instrument. Such testimony must.be given before other paroi testimony would be competent to show -that the paper was'delivered upon any condition. We have; therefore, this condition of affairs: The defendant presents ¡an instrument which, upon its-face is complete, fully executed and effectual for -the purpose for which it is apparently intended. The plaintiff proposes to attack its delivery. He cannot do this if the instrument is complete and appears upon its face to have been finally executed. This instrument does have that appearance. He, therefore, proposes to destroy its legal effect by introducing paroi testimony, that the words used in the instrument have a more extended meaning than that naturally to be given to them; and, he offers this paroi testimony for the purpose of enabling him to destroy the instrument to that extent and to show that it was not in a condition to become operative, and thereby entitle himself to give further paroi testimony to show that it was not intended to become operative. It must be remembered that upon its face the instrument is not at all ambiguous; that there is nothing in it which requires explanation, but without any paroi testimony whatever it is effective to do precisely the thing which the two signers say they propose to do by it. ' There is no necessity of paroi testimony even to explain a latent ambiguity because there is none.

The plaintiff seeking to establish the condition is utterly powerless to make the proof which would warrant her in establishing the condition until she has given paroi evidence that the paper, which is apparently complete upon its face, in fact means something else than it appears to mean. This testimony is clearly incompetent if it is offered, not to establish the condition, but to establish the incompleteness of the paper, which apparently is complete, so as to ' make competent the • paroi testimony,, which, against the complete paper, is not competent at all. In the absence of any testimony whatever the paper is complete and perfect, and for that reason the paroi testimony was incompetent. .

The learned counsel for the respondent has cited us to several cases which he claims sustain his contention. One of these is the case of Brackett v. Barney (28 N. Y. 333). There is a long opinion of the Court of Appeals in that case, the greater part of which was not adopted by any other judge than the one who wrote it. The case turned, however, very largely upon the point that the bond and mortgage which had been delivered by the mortgagor to the mortgagee did not take effect as such at the timé of the delivery. It appeared in the case that when they were delivered they were not complete instruments. They were signed only by the obligor and mortgagor. They were not acknowledged by him, but it was understood that when the transaction was finally completed they were to be signed by the wife, who appeared in the body of the mortgage as a mortgagor, but whose name was not signed, and were to be acknowledged by the wife and the mortgagor. For that reason it is quite clear that the mortgage, which was the subject of consideration in the case, was not a complete instrument, and was not within the rule which the defendant invokes in this case. The case of Reynolds v. Robinson (110 N. Y. 654) was the case of a writing which was not necessarily required to be under seal, and for that reason that case does not apply here. The case of Wendlinger. v. Smith (75 Va. 309) is cited as conclusive in behalf of the plaintiff. If that case laid down a different rule from the one which is laid down in Worrall v. Munn (supra) it would not be controlling in this State; but the case is no authority for the state of facts which is made to appear here. The contract for the property in that case was, by its express terms, made dependent for its validity upon the approval of certain persons, and a blank approval to be signed by'those persons was put at the foot of the contract. Upon that approval were affixed seals for the names of many other persons than those who, in fact, signed it, and it. was apparent from an inspection of the paper that it was not a complete paper for the reason that it had.not been signed by several persons whose names were intended to be signed to it. The case, therefore, is not like the present one. Xb case is cited which overthrows the well-established rule, or which, if applied to the facts of this litigation, operates to exempt it from the general rule. This rule, which rendered the condition invalid, was not observed by the learned trial judge, and for that reason his judgment was .erroneous •even if it can be said that there was any testimony in the case upon which he might have found that there was a delivery upon any condition whatever. But we think there is no such testimony. All the evidence upon the subject, which was given at all, came from William W. Moore, the plaintiff’s witness, who said that he was present when his wife received a letter from the defendant which she opened and handed to him. It contained the release and a request in the letter that my wife sign a release ; that other members of the family were going to sign, and that unless she signed and they all signed, it would be void.” That letter the witness said Was signed by the defendant. There is no other evidence of any condition whatever, and there is no evidence at all that the release was delivered in reliance upon any of the statements contained in the letter, or that any reference- was made to the letter when the release was sent to the defendant. The witness says simply that his wife executed the release and sent it to the defendant, and he makes no claim that at that time any statement was made to the defendant that the execution was upon any condition whatever. The evidence is totally defective to establish that there was any delivery upon con- . dition, and for that reason, as well as for the reason given in the former part of this opinion, the judgment should be reversed and judgment ordered for the defendant, dismissing the complaint.

Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.

Judgment reversed, with costs, and judgment ordered for defendant dismissing complaint^ with costs.  