
    Claudine B. Weed, Pl’ff, v. Van Wyck Hewlett, Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1890.)
    
    Mobtgage—Assignment.
    In an action to recover possession of certain bonds and mortgages claimed by plaintiff to have been assigned to Mm by one H. and withheld from him by defendant, who had obtained possession of them, defendant denied plaintiff's ownership and alleged that before the assignor’s death they were in defendant’s possession as agent and since as executor. Plaintiff required the production of the instruments on the trial and offered them in evidence, but gave no evidence as to a delivery. Held, insufficient to show a transfer of title; that delivery would not be presumed from the fact that defendant was a subscribing witness to the assignment, and that in the absence of proof of the circumstances attending the execution of the assignments or of a delivery plaintiff was properly nonsuited.
    Exception ordered to be heard in the first instance at general term.
    
      Daniel S. Hemsen, for pl’ff; Josiah T Marean, for def’t.
   Barrett, J.

The action was to recover the possession of two bonds and mortgages made by different persons to one Abraham Hewlett. These instruments .the plaintiff alleges were duly assigned to him by Hewlett. He further avers that he is the owner of these bonds, mortgages and assignments, and that the defendant, who obtained possession of them prior to the commencement of the action, has refused to deliver them to him upon demand. The defendant denied the plaintiff’s ownership and alleged that at the time of Hewlett’s death, which occurred on the 22d day of October, 1886, the bonds and mortgages were in his possession as Hewlett’s agent and that they have since been in his possession as Hewlett’s executor. He also alleges that the bonds .and mortgages were Hewlett’s property at the time of his death. Upon this state of the pleadings it was incumbent upon the plaintiff to prove delivery. He contented himself with requiring the production of the instruments by the defendant upon the trial and then offering them in evidence. This was not enough. Delivery was essential to the transfer of title. It is, as was said in Younge v. Guilbeau, 3 Wall., 636, “the final act without which all other formalities are ineffectual. To constitute such delivery, the grantor must part with possession of the deed or the right to retain it.”

Here the assignments were never recorded, and the plaintiff is not aided by the presumption which sometimes arises from that circumstance. Hor can delivery be inferred, under the circumstances, from the fact that the defendant was the subscribing witness to the assignments. It is true that his signature followed the expression “signed, sealed and delivered in presence of,” but that was a mere formality, and one which naturally preceded delivery. Standing alone, it here indicated nothing, one way or the other, as to the actual fact of delivery. The subscribing witness was not dead' (as in Hope v. Harman, 11 Jurist, 1097), and he could have been called to explain the attendant circumstances. That burthen was on the plaintiff. The rule laid down by Chancellor Kent in Souverbye v. Arden, 1 John. Ch. 254, 255, and by the Court of Errors, in Verplank v. Sterry, 12 Johns., 336 (following the ancient English cases of Taw's Ex'rx v. Bury, 2 Dyer, 167 b, and Shelton's case, Cro. Eliz., 7), is inapplicable, for there is no evidence that the plaintiff was present when the assignments were executed, nor that they were delivered to the defendant, for him or to his use The plaintiff thus relies upon the naked fact of the existence of the assignments and their possession by the subscribing witness. This in my judgment was not sufficient to carry the case to the jury. In Fisher v. Hall, 41 N. Y., 422, Daniels, J., speaking for the court of appeals, cited with evident approval the case of Rushin v. Shields, 11 Georgia, 636, where “it was held that the attestation clause, reciting that the deed was delivered, was not of itself sufficient to establish a delivery.” This principle applies with greater force where possession is in the subscribing witness. If any presumption is to be indulged in from that isolated fact, it is that the deed never passed from his hands after he signed the attestation clause. The plaintiff here should have gone further and shown the circumstances attending the execution of the assignments. Having failed to do this, or to establish delivery either directly or inferentially, he was properly nonsuited.

The exception must, therefore, be overruled and judgment directed for the defendant, dismissing the complaint, with costs.

Van Brunt, P. J., and Bartlett, J., concur.  