
    Robert V. V. Sewell, Appellant, v. Home Insurance Company, Respondent.
    Second Department,
    March 5, 1909.
    Insurance — when fire insurance policy avoided by transfer of title —• deed — when no delivery in escrow.
    Action to recover upon a policy of Are insurance which the insurer defended on the ground that there had been a change in “ interest, title and possession ” so as to avoid the policy1. The plaintiff, while in actual physical possession, had paid the purchase price of the premises to the owner who had taken out the policy, had also paid interest required by the purchase-money mortgage and had made improvements. At the time when both deed and purchase-money mortgage were executed and acknowledged, the grantor and grantee met the attorney who had drawn the instruments, who informed them that he could not record them until he had procured a copy' of a map.referred to in the descriptions. The latter, however, were complete, irrespective of the map which was that of a survey which had already been made. The grantor and grantee directed the attorney to record the instruments when he obtained a copy of the map to record with them; but the premises were injured by Are before the instruments were actually recorded.
    
      Held, that the instruments were not held in escrow, but that there had been a delivery and acceptance within the mutual intent of the parties so as to make a change of title and possession, avoiding the policy;
    That the map was not an essential part of the conveyance preventing complete delivery, especially as it was already in existence, and recording was delayed merely to procure a copy;
    That in any event the plaintiff was a vendee in possession so as to avoid the policy, even though his original entry was as an agent of a lessee who ceased to pay rent after the contract of sale to the plaintiff.
    Appeal by the plaintiff, Robert Y. Y. Sewell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Nassau on the 22d day of June, 1908, upon the verdict of a jury rendered by direction of the court after a trial at the ¡¡Nassau Trial Term.
    
      Rutger Bleecker Miller, for the appellant.
    
      Dickinson W. Richards, for the respondent.
   Jenks, J.:

The plaintiff appeals from his judgment for $111, admitted by answer to be, due and tendered by an offer of judgment.. The action is to recover $5,111 upon a fire insurance policy that covered real and personal property. The defense is a change “ in the interest, title and possession ” of the realty against an avoiding provision in the policy. At the close of the evidence the defendant moved for a direction of a verdict for the plaintiff for $111, and the plaintiff moved for a direction for the full amount of his claim. The court granted the plaintiff’s motion under section 1185 of the Code, of Civil Procedure; the-defendant thereupon moved to set aside the verdict, which was done, and the present judgment was directed.

The learned court decided that there was “a clear change of interest,” and the correctness of that decision is challenged on this appeal. The policy was issued in September, 1904, to Underhill, owner of the premises. On October 4, 1906, Sewell and Underhill made a contract whereby Sewell agreed to purchase the premises for $5,000 cash and his purchase-money bond and mortgage for $20,000, payable in 5 years, with 5$ interest payable semi-annually. The deed was to be dated October 1, 1906. Sewell resided on the premises at the time the contract was made, and continued to reside there until the day of the fire, April 5, 1907. The learned counsel for the appellant contends that there was not a delivery of the deed and a transfer of the premises from Underhill to Sewell until after ■ the fire. A week or ten days before the fire, the Vendor and vendee met at the former’s house, together with Mr. Stoddart, an attorney at law, who had prepared the deed and the bond and mortgage required by the said contract. Mr. Stoddart testifies that he told the said parties that he could not record the instruments until a certain “ map ” referred to in them was-delivered to him; and thereupon the parties left these instruments with him, which were not -recorded by him until some time after the day of the fire. “ The question of delivery, involving as it does acceptance, is always one of intention, and where there is a conflict in the evidence, it becomes a question of fact to be determined by a jury. There must be. both a delivery and acceptance with the intent of making the deed an effective conveyance.” (Ten Eyck v. Whitbeck, 156 N. Y. 352.) There is practically no contradiction by either party of Mr. Stoddart’s testimony as to the doings before and at this interview. If there were, both parties had moved the court for a direction and had thus made it- the judge of the facts. It is not disputed that, upon the execution of the contract months before, the vendor paid the $5,000 cash consideration and began to pay the interest required by the bond and mortgage. It is not disputed that the deed and the bond and mortgage were fully prepared (save as to the map, which I shall discuss hereafter), were duly acknowledged on March 16,1907, and were produced at this interview. Mr. Stoddart, asked whether the bond and mortgage were handed to him, answered: “ I don’t know as handed. They all were handed. I picked them up; that would be a .better way to put it.” He continued: “ There was, I think, some suggestion that I was to hold on to the mortgage until the map was delivered to me, and upon the delivery of the map I was to record the deed and the mortgage and file the map.” Both parties made the suggestion. The “map” was a certain survey. Both deed andpnortgage made reference thereto. But the location, description and boundaries were full and irrespective of this map or survey, which was referred to in both instruments after the location and description were fully set forth, to facilitate the running of a boundary line. The map is described in the said instruments as a survey made by W. H. C. Pynchon, civil engineer, dated January 25, 1907, and the provision as to it in each instrument was “ a copy of which is to be filed in the office of the Clerk of Nassau County.” But the map itself was in existence at the time of this meeting of the parties, for Mr. Stoddart testifies without contradiction, “ The map was not ready. In other words, the map they had there did not belong to them.” And moreover, the map is, as I have shown, definitely described in both deed and mortgage as dated January 25, 1907, and these instruments were acknowledged on March 16,1907. Mr. Stoddart wished for a “ copy ” which could be filed, but even that copy was not to be filed simultaneously with the instruments because the explicit provisions therein were “a copy of which is to be filed.” There is no question then that when the parties thus met the vendee had some months before paid the consideration; that the vendor was in physical possession; that the instruments were produced complete and acknowledged, and that they were thereupon left with Mr. Stoddart, who “ was to record the deed and the mortgage and file the map,” which was afterwards done. Indeed Mr. Stoddart, so far as the parties were concerned, could have recorded the instruments for them respectively forthwith, and could have filed the copy of the map whenever one was produced. The delay in record was a mere matter of - business procedure on the part of Mr.' Stoddart who, of course, is above any criticism. There is -no ritual of delivery, and record is not essential ■ to delivery. There is not the slightest proof but that each party intended to deliver up to the other the instruments in question without reservation or condition. Mr. Stoddart then. did not hold the instruments as in escrow for the performance of any condition before delivery, within the rule indicated in Foster v. Mansfield (3 Metc. 414). I think that the learned court was correct in its decision that “ there was a delivery of both the deed and the mortgage within the mutual intent of the parties.” (See 1 Devlin Deeds [2d ed.], § 306.) . In this section the author writes: “ Where a grantor having executed a deed to his intended wife, hands it to her, and she, after some conversation relating to the deed, gives it back to him for the purpose of having it recorded, there is a sufficient delivery.” (See, too, National Bank v. Bonnell, 46 App. Div. 305; Reed v. Marble, 10 Paige, 409; Souverbye v. Arden, 1 Johns. Ch. 240, 256; Munoz v. Wilson, 111 N. Y. 295; Rosseau v. Bleau, 131 id. 177.)

But it is also urged that there could be no delivery because the map was a material and an essential part of the conveyance, and there could be no complete delivery without its existence. But the map, for the reasons heretofore stated, was not a material and essential part of the conveyance. But assume that it was, the evidence, as I have pointed out, establishes without dispute that it was in existence. All that appears is that any copy owned by the parties was not on hand so that it could forthwith be filed. The reference in the instruments is to a described survey, an existing thing, of which a copy was to be filed, and not simultaneously, as I have said. The several cases cited from Barbour’s reports do not apply. They recognize the rule that where property cannot be located and described without a map referred to in the instrument, or the property is located and described or sold with express reference to a map, then the map is read into the conveyance. In the only other ease cited by the learned counsel for the appellant (Hoyt v. McLagan, 87 Iowa, 746) it was held that the grantors did not part with power and control and the right to revoke their deeds when they left them in the hands of a third party until they got proper abstracts of title,” the court saying that each party thereby reserved control of their deeds, asking, if otherwise, why did the parties thus deposit the deeds when they themselves could have obtained the abstracts, ■ and why did the parties reserve the right to themselves to determine whether the abstracts were proper % Ho such question is presented in this case.

But in any event I am of opinion that the case shows a vendee in possession. The vendee was in physical possession of the premises when he made the contract of sale. It appears that he remained thereafter in continuous possession up to the time of the fire. It is not contended that after the execution of the contract his occupancy was that of a tenant or that he ever paid any rent. The testimony is undisputed that the vendee never had a lease of the premises and never was regarded as a tenant thereof. It appears that the premises had been leased in January, 1904, by this vendor to Bussell by lease to expire on March 1, 1907. Bussell agreed in the lease to occupy the premises for requirements of ‘ The Huntington Stud,’ ” a corporation, and this vendor then entered upon the premises as the resident agent of that corporation and had made the payments of rent on account of the lease up to October 1, 1906. This accident of occupancy of the premises explains why the vendee as such did not make any formal physical entry. But Sewell residing in the premises as the agent or servant of the tenant, and Sewell as vendee, are two distinct persons in the eye of the law. And it would be absurd to contend because he originally came upon the premises perforce of a lease to his principal, that so long as he remained on the premises he must be regarded in that status. After he made the contract for purchase, no rent was paid by any one, but on the other hand he paid forthwith the cash Consideration, and he began to pay the interest on his bond and mortgage, which constituted part of the consideration. The presumption would be that his occupancy was that of vendee under that contract. Moreover, he began to make and made extensive alterations and repairs upon the premises, although he does testify that he asked permission. In the absence of any express agreement, there was an implied consent that he might enter into possession of the premises as owner. (Miller v. Ball, 64 N. Y. 293; Teller v. Schulz, 123 App. Div. 884.) As the court say in Miller v. Ball (supra), it cannot be inferred that the vendor meant, to retain the consideration and at the same time retain the control of the land from the only person interested in the use and protection of the same. Such possession would avoid the policy of insurance. (Brighton Beach Racing Assn. v. Home Ins. Co., 113 App. Div. 728; affd., 189 N. Y. 526.)

The judgment must be affirmed, with costs.

Woodward, Gaynor, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs. • ■  