
    Brown v. Danforth et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    February 11, 1890.)
    Deed—Delivery—Sufficiency of Evidence.
    Evidence that the grantor executed and acknowledged a deed, and delivered it to an employe of the grantee, who placed it in the grantee’s safe until his return, he being then absent, and afterwards delivered it to the grantee, who thereupon assumed the management, and obtained and continued in possession of the property until the death of the grantor, shows a deliver) of the deed by the grantor, and acceptance by the grantee.
    Appeal from judgment on report of referee.
    Action by Eliza W. Brown against Louisa Danforth, Esther Sanborn, David Wilber, and Sylvester Diefendorf. Plaintiff appeals from a judgment in favor of defendants Sanborn and Danforth dismissing the complaint.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Edick & Smith, for appellant. James W. Tucker, for Wilber and Diefendorf. R. M. Townsend, for respondents.
   Martin, J.

The controversy in this action arises over certain funds in the bands of the defendants Wilber and Diefendorf. These funds are the avails of property which formerly belonged to Elijah Brown. The plaintiff claims title under what has been called a “trust-deed,” made by Brown in his life-time to the defendant Wilber. The defendants other than Wilber and Diefendorf claim such funds as legatees under the will of Brown. The trust-deed was made, executed, and acknowledged December 4, 1876. The will was executed August 26, 1879.

It seems to be admitted by all that if the trust-deed was valid the plaintiff was entitled to the funds in question. The only ground upon which the deed is claimed to be invalid is that it was never delivered, and consequently did not become operative as a transfer of the property to Wilber. The referee before whom this action was tried found that the deed was never delivered or accepted, and hence never became a valid instrument between the parties. Upon that ground, he directed a judgment against the plaintiff dismissing the complaint, with costs. Therefore, the only question relating to the merits of this controversy, which we are called upon to determine, is whether, under the evidence in this case, the findings of the referee, that such trust-deed was never delivered, should be upheld. The undisputed evidence in the case is to the effect that this deed was executed and acknowledged by the grantor, and by him delivered to the defendant Diefendorf, who was in the employ of the defendant Wilber, who was then absent; that Diefendorf placed it in Wilber’s safe until his return, and then delivered it to Wilber, who has had it in his possession from that time until about the time of the commencement of this action. The evidence also tended to show that Wilber thereupon assumed the management, and obtained and continued in possession, of the property conveyed from the time when the deed was delivered to him until the death of the grantor. While it is claimed that the act of Brown in subsequently making other provisions for the disposition of his property by will, and the acts of Wilber and Diefendorf in acting as executors of such will, are inconsistent with such evidence, still we think the evidence showed quite conclusively that this deed was delivered by the grantor, and accepted by the grantee. We are of the opinion that the learned referee was not justified in finding that there was no delivery of such deed, or in dismissing the complaint on that ground, and that the judgment should be reversed. Judgment reversed, and a new trial granted, with costs to abide the event. All concur.  