
    SUPREME COURT.
    Adelaide Brink, respondent, agt. Joel Gould appellant.
    
      Elmira General Term,
    May, 1872.
    It is essential to the parol gift of personal property, in order to pass the title, that it be delivered. A" mere intention, or naked promise to give, without some act to pass the property, is not a gift. The donor must not only part with the possession, but with the dominion of the property. And the gift is only perfect and irrevocable by delivery and acceptance.
    
    •In this case, there was no such delivery of the property (a heifer) to the plaintiff by her mother, as the law requires to establish a lawful gift.
    Miller, P. J. Potter and Parker, JJ.
    
    This action was brought in a justice’s court to recover the value of a cow, which plaintiff claims was wrongfully and unlawfully taken by the defendant.
    The defendant denies every allegation of the complaint, also denies the plaintiff being the owner of said cow, or having the right of possession.. The answer also alleges that he came rightfully in possession of said cow, by virtue of a mortgage given by James B. Brace, plaintiff’s father, to James B. Balch, and that afterwards the said James B. Brace, who had a right so to do, and at the time of the .pretended conversion did sell and deliver-the said cow by agreement to pay the said mortgage.
    And that if the plaintiff ever had any property in said cow, she had full knowledge of the mortgaging of said cow to James B. Balch by her father,- James B. Brace, and by various acts had acknowledged the right of Brace to control and mortgage said cow, and had approved and ratified the mortgaging of said cow by having full knowledge of the fact, and in ferposing no objections, and by giving no notice of her claim, if any existed.
    The case was tried before the justice and a jury, and a verdict rendered in favor of the plaintiff. The defendant appealed from the judgment to the county court of Tioga county, and upon a retrial then a verdict was found in favor of the plaintiff for $74 90. At the close of plaintiff’s testimony, a motion was made for a nonsuit upon the ground among others, that there was no valid gift of the property to the plaintiff) which motion was denied, and the defendant duly excepted. Four other questions were raised upon the trial, but it is not important to state them. The material feature is set forth with sufficient particularity in the opinion. A judgment was entered on the verdict, a motion was made-for a new trial, and denied by the county court, and the defendant appealed to the general term of the supreme court.
    Charles A. Clark, for appellant and defendant.
    
    I. To maintain trover, or any action for the conversion of personal property: The plaintiff must have property in the chattels converted and the actual possession, or the right to the possession, at the time of the conversion.
    And if the defendant denies property in the plaintiff: Under such a denialj the defendant may show property out of the plaintiff and in himself, or in a third person. Such nroof will defeat the action (Morey agt. Safe Deposit Co., 39 How., 124; Tuthill agt. Wheeler, 6 Barb., 362; Hotchkiss agt. McVickar 12 Johns., 403; Heyl agt. Burling, 1 Caines, 14).
    IT. The heifer or cow in controversy was not the property of the plaintiff at the time the defendant took possession of her, January 30th, 1869. Neither had she been at any time'the property of the plaintiff, nor in her possession.
    The plaintiff claims the heifer as a gift from her mother, which gift consisted in a conversation which she and her mother allege took place in February, 1867, concerning the giving the plaintiff a heifer by the mother. Two heifers were mentioned; neither was designated. Neither was accepted at the time. The heifer was not seen at the time, nor is there any recollection when she was seen afterwards. There never was any delivery of the heifer to the plaintiff, and there was never any change of possession until she was delivered by James B. Brace, on the 30th of January, 1869, to the defendant. The heifer continued to be kept with her father’s stock as before. James B. Brace raised this heifer from a calf, furnished fodder for her, and at all times exercised acts of ownership over her, had the possession and control of her, and it nowhere appears that he had any knowledge of this pretended gift from his wife to his daughter, the plaintiff, until January 30th, 1869.
    At the time of this conversation purporting to amount to a gift of this heifer, the plaintiff was living away from home teaching school. Yet the heifer was not seen. No change was made in the possession; no different arrangement concerning her keeping, and it nowhere appears that this heifer being given to plaintiff was ever mentioned, between donee and donor, or to other parties from the time when this conversation is pretended to have taken place in February, 1867, up to the time when Brace was delivering up this heifer in accordance with his bona fide sale on the 30th of January, 1869.
    The plaintiff married and went away from home to live, and the heifer remains in the same possession. Nothing is mentioned that she had any claim to the heifer anywhere, nor at anytine, nor to any party. Her husband did not' know that she had any claim on the heifer. They moved to Nanticoke and live in the same house with her father; but by themselves, each furnishing their own table. This heifer becomes a cow and gives milk, the milk is never separate from the milk of the other cows belonging to her father, but is all put together .with the milk of the other cows, and this continued so up to the time defendant came in possession of this cow, and this mysterious gift appears not to have been thought of during all this time.
    It is essential to the validity of a gift that it goes into effect immediately and completely. If it is to take effect in future, it is a mere promise; and since it is a promise made without any consideration to support it, the law will not enforce it. For this reason it is indispensable that every oral gift to be valid should be accompanied by an actual or' symbolical delivery of the thing given if the subject matter is capable of delivery.
    If the possession, or some means of obtaining the possession and control is not transferred to the donee, the title does not pass (1 Wait, 109; 11 Wait, 1013, note 14; Noble agt. Smith and others, 2 Johns., 52; Cook agt. Sarah Husted, 12 Johns., 188; Huntington agt. Gilmore, 14 Barb., 243; Woodruff agt. Cook, 25 Barb., 505 ; 2 Kent’s Com., 438; last ed., 2 Kent, 566).
    In this case the court will perceive that the evidence is complete and positive by the plaintiff, the pretended donee, and by her mother, the pretended donor, that there was never any deljvery of this heifer to the plaintiff, and never a change of possession. This is from plaintiff’s own witnesses, and stands entirely undisputed ; that the plaintiff did not in any manner ever have any control over this cow. The question which defendant thinks should be decided is, “ Is any delivery whatever necessary to constitute a valid gift 1” or “ can a valid gift be made without designating what the property is, or which of different pieces of property is to be given, without pointing it out, without seeing it, and without even receiving possession or control of the property in any manner whatever i” And the opinion of the court is respectfully asked.
    III. If Irena Brace, the mother of plaintiff, was originally the owner of this heifer or cow, she continued to own it as the possession, title and control were not changed in consequence of the pretended gift. The mortgage given by Brace, and the sale made by him was binding upon her. 1st. Brace . told her at the time of borrowing the money of defendant, he got the money to pay company debts With, of which she owed a part. 2d. She knew of the mortgaging of this cow, and made no objection. 3d. Brace was her authorized agent, and did the business for the firm. If there was money to be borrowed, .or to be paid,, he did it. 4th. She was present at the time of the delivery of this heifer, and made no objection to the sale and delivery. This cow was delivered to defendant by an arrangement made with James B. Brace. Brace stated to Almon Morgan when he turned this heifer out to him as security on a former occasion, in the presence of Mrs. Brace that this heifer was his, and she assented to it by not .disputing it. The sale and mortgage by Brace was a sale by .the wife if she was the owner óf the property. She was cognizant óf the whole transaction and' approved and ratified it. Now, when Brace borrowed the money of defendant and mortgaged this heifer to secure Balch for signing with him, he was doing just such business as Mrs. Brace swears-he was authorized to do for the firm : to borrow "money when necessary, and to pay it out. The mother ha*d never delivered this heifer to plaintiff, and after selling it through James B. Brace, her agent, to Balch, or to defendant, she can’t now "trump up some old conversation between- her and her daughter, to deprive an innocent purchaser in good faith of his rights, and thus defraud him of his money (Caimer agt. Bleecker, 12 Johns., 300 ; Johnson agt. Jones, 4 Barb., 369; Thompson agt. Blanchard, 4 Comst., 303; Niven agt. Belknap, 2 Johns., 573 and 599 ; Brewster agt. Baker, 16 Barb., 613; Stephens agt. Baird, 9 Cow., 274; Edgerton agt. Thomas, 5 Seldon, 40).
    IY. The plaintiff had knowledge of this mortgage, and if she had any claim to this cow, she legally assented to the mortgage (12 Johns., 300; Thompson agt. Blanchard, 4 Comst., 303; Brewster agt. Baker, 16 Barb., 613).
    Every ratification of an assumed agency is equivalent to an original authority (Tracy agt. Veeder, 35 How., 209).
    V. The defendant had a right to the answer to the question put to Theodore Brink, plaintiff’s husband, on a cross-examination : “ Did you not in December, 1868, make a contract with James B. Brace, by which you were to have this cow of him ?”
    The defendant had a right upon cross-examination to show that the plaintiff’s husband eight months after the mortgage was given on this cow, and only the month before she was delivered up to pay the mortgage, and after the whole family, plaintiff and all, knew of the existence of the mortgage, supposed the title to be in Brace instead of his wife, the plain-; tiff. It would show that after this cow had been milked through the season, that plaintiff’s husband considered the title and the possession, and the right to dispose of this cow in Brace.
    This right the defendant was denied by the court, to which the defendant excepted.
    And yet, after denying the defendant the answer to this question, the learned judge charged the jury to take into account any acts of ownership or control exercised by the plaintiff, or by her husband for her, in determining whether this cow had been delivered to the plaintiff.
    And although the only claim made that there was ever a delivery to the plaintiff, by plaintiff’s counsel, and the only claim that the plaintiff ever had any possession or property in this cow, was based on the ground that her husband, the witness, made a contract with James B. Brace, and. became a partner in Nanticoke with James B. & Irena Brace, and by virtue of this, partnership the husband of plaintiff came in possession of the premises on which- the stock was kept equally. with J. B. Brace & Irena Brace, and that his possession of the real estate, thus obtained, unwittingly and without knowledge, thought or intent, completed this pretended gift. And yet, defendant was denied the privilege of proving by this husband, whom plaintiff produced as a witness, that he knew that Brace had either the ownership or right to sell and dispose of this cow. And that if witness (plaintiff’s husband), ever had any possession it was under a contract from James B. Brace, and that plaintiff, by no act, word or deed of hers had ever indicated that she had ever had any present from her mother, and that she had never communicated to her husband that she claimed this heifer, which would be strong presumptive evidence that she did not consider it'hers.
    VI. The court should have granted a nonsuit on motion of defendant. '
    From plaintiff’s own evidence the cow in question was shown not to be the property of plaintiff. She was shown never to have possesssion, or the right of possession, and there was no fact, with which the plaintiff should have been allowed to go to the jury (Huntington agt. Gilmore, 14 Barb., 243).
    VII. The judge’s charge to the jury was conclusive against the defendant, and the defendant’s rights were prejudiced thereby. The-charge left no fact for the jury to determine, it in fact ordered the jury to find a verdict for the plaintiff. The charge necessarily carried to the minds of the jury, that his honor, the judge, had determined that there had been, at some time and in some manner, a delivery to the plaintiff of this heifer. He charged the jury, “ that the gift of this cow became complete, and that the title was in the plaintiff.” This left no fact for the jury to determine, and to this charge the defendant duly excepted.
    He also charged the jury, “ that unless the mortgage was given by the consent and approval of the plaintiff, they would find as damages for the plaintiff, the value of the cow,” &c. To which the defendant duly excepted.
    This instructed the jury to find a verdict for the plaintiff, even if the plaintiff was not the owner, nor had any right to possession, if the mortgage had not been given by her consent and approval she was entitled to a verdict according to the charge. And if she was the owner, and after the mortgage was given, ratified the act, still, according to the charge, the jury were instructed to give the plaintiff a verdict.
    He also charged the jury that acts of ownership, or control, exercised by the plaintiff’s husband were to be taken into account in determining the completion of this gift, to which the-defendant duly excepted.
    There w;as no foundation in the evidence for such a charge.
    The evidence amounts to positive proof on the part of the plaintifi that there was at no time a delivery of this heifer to the plaintiff, nor to any one else, for there was no change of possession (2 Kent’s Com., 438; last ed., 2 Kent., 566).
    Therefore, the plaintiff’s husband could not have had possession of her, nor the plaintiff. And there is not the slightest particle of evidence in the case tending to show any delivery or change of possession.
    The charge was unjust- and prejudicial to the defendant and controlled the verdict of the jury (3 Abb. N. S., 286).
    The judgment should be reversed with cost, as a new trial would be-no benefit to the plaintiff.
    Charles A. Munger, for respondent and plaintiff.
    
    I. The jury found the gift complete, and there is evidence to sustain their finding.
    The plaintiff swears that in February 1867, her mother gave her the heifer, telling her she could have whichever of the- two she wanted; that in 1868, she milked the cow; that in January 1869, she was the owner of the cow, and asserted her ownership, and forbade the taking.
    Mrs. Brace swears that she gave the animal to the plaintiff ; was present when she asserted her claim and forbade the taking, and that Brink, herself and Brace lived together on the farm when the .cow was taken, and were in-partnership in the business of farming. Mrs. Brace recognizes the gift and makes no claim to the animal.
    Mr. Brink, the husband of plaintiff, was present at the taking, when his wife claimed the cow, and afterwards by her direction demanded the animal of the defendant; and from his evidence it may be inferred that after April 1867, his wife claimed the heifer, and that he drove the heifer to bull in June, 1867.
    It would'seem that from the time of, or shortly after the gift in February 1867, this animal was recognized and treated as the plaintiff's property up to the occasion of the conversion—and will a party who makes no claim through either the donor or donee be permitted to question the validity of the gift?
    II. Although delivery is essential to a gift, yet, as the daughter was at the time teaching school away from home, and as after her marriage, with the exception of two months, she and her husband lived with her parents, a sufficient, and all the delivery the property was susceptible of, may be inferred.
    Mrs. Brace recognized and never revoked the gift. Her daughter accepted and claimed it. The donee and her husband exercised acts of ownership over the cow. After March 1867, the plaintiff and her husband were in joint occupation, with Mr. and Mrs. Brace, of the farm on which the cow was kept, and Brink was a partner with Mr. and Mrs. Brace in the farming business.
    When a father bought a lottery ticket which he declared he gave to his infant daughter, and wrote her name upon it, and after it had drawn a prize declared that he had given it to her, and that the prize money was hers—this was held sufficient for a jury to infer all the formality requisite to a valid gift' (Grangiav, agt. Arden, 10 Johns., 292).
    A man and woman lived in the same boarding-house, and he maintained and treated her as a daughter, and both had access to a room in which he had a trunk. Being about to go away, and being in another room, he said to her: “ My trunk upstairs and what is in it, I give to you—there is enough in it to keep you a spell.” He went away and returned in a few days and occupied the room and used the trunk arid clothes as usual, and until he died, shortly after. The woman then took the trunk and contents, among which was a pass book in a savings .bank. Woodruff, J., held this a valid gift of the book, and of the moneys standing to the decedent’s credit therein, and that a delivery and acceptance might be inferred from the facts (Penfield agt. Pub. Admr., 2 E. D. Smith, 305).
    III. The jury having found, as they well might find, that Mrs. Brace knew nothing of the mortgage until the summer after it was given, and the plaintiff nothing until some two. weeks before the taking, the defendant is concluded on that point. He derived no right through either mother or daughter..
    Now, as Brink and wife, and Brace and wife, together occupied the farm where the animal was kept, and as Briuk did not claim her—as Mrs. Brink, the former owner, recognized the cow as the plaintiff’s, and as at the time of the conversion the plaintiff claimed and exercised acts of ownership over her, the plaintiff had such a possession as would •entitle her to maintain trover even if the gift had never be•come complete.
    A naked possessor of goods without right may mairitain an action of trover, and if property be set up by a third person, it must be followed by proof of some right or claim derived by the defendant from the true owner (1 Cow. Tr., 3d ed., 321, and cases cited).
    IV. The charge of the judge is unexceptionable. The expression of the.judge, “It seems to me the gift became complete,” taken in its proper connection, did not amount to an instruction to the jury on a point of law. It was a mere expression of an opinion that the evidence did show a transfer of possession, and he in no respect assumed to take from the jury the right to judge for themselves on the matter. A .mere expression of an opinion by a judge upon the evidence, leaving the jury to draw their own conclusions, is never a ground for a new trial (Johnson agt. Packard, 6 W. 415; Winne agt. McDonald., 39 N. Y., 232)
   By the court, Miller, P. J.

—Delivery is essential to the validity of a parol gift. Without a delivery, title does not pass, and a mere intention or naked promise to give, without some act to pass the property, is not a gift (2 Kent Com., 438). The donor must part not only with the possession, but with the dominion of the property (2 Kent Com., 439). And the gift is only perfect and irrevocable by delivery and acceptance (2 Kent Com., 440, see also Grangiac agt. Arden, 10 Johns., 296 ; Huntington agt. Gilmore, 14 Barb., 246; Woodruff agt. Cook, 25 Barb., 512; Harris agt. Clark, 3 Com., 113).

The principles laid down are quite familiar and applying them to the facts presented in the case at bar, I am unable to see how the plaintiff can recover, and am inclined to think that the court were in error in refusing the motion made by the defendant for a nonsuit. The plaintiff claimed the property as a gift from her mother, and it appeared upon the trial, that the plaintiff’s mother was the owner of the two heifers, and that in the month of February, 1867, in a conversation with the plaintiff at the mother’s residence where the heifers were, she told the plaintiff that she could have whichever one of the heifers she wanted. No response was made to this. The heifers were not present, and no designation was made by the plaintiff of either of them, at that time. The plaintiff did not live at home, but was away teaching sóhool, and did no act to take possession of the heifer. The plaintiff neither received nor did her mother deliver the property to her at t)ie time the alleged gift is claimed to have been made. There was no such acceptance and delivery as the law requires.

The subsequent acts do not, in my opinion establish, or-tend to prove any facts which obviate the difficulty. The plaintiff was soon afterwards. married, and in the month of . March -following, her husband and father and mother, made a contract for a farm, to which the father and mother removed with the two heifers and other stock which had remained . in their possession, and about the first of April the plaintiff and her husband also went there. The farm was then worked by the plaintiff’s husband and her father and mother jointly, and in April, 1868, the plaintiff’s father executed a chattel mortgage upon the heifer and other property under which the defendant claims title, and took the samé in the month of January, 1869. During the period that the plaintiff and her husband were in possession of the farm with her father and mother, she exercised no distinct -act of ownership over the property, nor made any especial claim of title, to wit: It was these the. same as other stock, and there is no evidence ot a delivery of the property to her alone. Certainly there was no such delivery, as the law requires to establish a gift within the meaning of the law. There is in fact, nothing in the case to show any change in the possession of the property after the alleged gift, except the fact that the plaintiff and her husband worked the farm in conjunction with her father and mother. This is not sufficient to make out a valid gift, or to raise any question of fact for the jury upon that subject.

Four other questions are made, but inasmuch as there was error for the reasons stated, in refusing the motion for a non-suit, it is not necessary to .discuss them. .*

Judgment and order appealed from reversed, and a new trial granted with costs to abide the event.  