
    (69 Hun, 450.)
    TEN EYCK et al. v. WITBECK et al.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    1. Review on Second Appeal.
    On a second appeal the court will not review matters decided on a former appeal.
    2. Fraud—Evidence—Declarations.
    The declarations of one that he intends to and shall have a deed of land' do not indicate that he intends to obtain it by fraud or undue influence.
    8. Same—Evidence—Question for Jury.
    In ejectment, there being no competent evidence that a deed under which plaintiff claims title was procured by fraud or undue influence, or that the grantor was mentally incompetent, the court should withdraw those issues from the jury.
    Appeal from circuit court, Albany county.
    Ejectment by Maria Ten Eyck and another against Catharine A. Witbeck and others. From a judgment for defendants, plaintiffs appeal.
    Reversed.
    For former report, see 15 N. Y. Supp. 418, reversed by 31 N. E. Rep. 994.
    Argued before PUTNAM and HERRICK, JJ.
    W. C. McHarg, (J. H. Clute, of counsel,) for appellants.
    C. M. Barlow, (Matthew Hale, of counsel,) for respondents.
   PUTNAM, J.

The complaint states a cause of action in ejectment. A denial of its material allegations was contained in the answer, and the issues thus formed were brought to trial at the Albany circuit in 1889. One Peter W. Ten Eyck was the original owner of the farm which is the subject of the action. On the 21st day of September, 1871, for the purpose of transferring it to his wife, Elizabeth, he executed a deed thereof to one John M. Carroll, for a nominal consideration, the latter on the same day transferring said premises to said Elizabeth Ten Eyck. Said Elizabeth on January 9, 1883, conveyed said real estate to plaintiffs. Neither of said deeds was recorded until 1883. The defendants claim that the title to said premises is in the defendant Catharine A. Witbeck under a deed from said Peter W. Ten Eyck dated July 7, 1877, and recorded December 5, 1879. The jury found for the defendants, and upon the verdict a judgment was entered against the plaintiffs for costs. The plaintiffs appealed, and the general term affirmed' the judgment. Defendants on the trial, -and on said appeal, claimed that the deeds under which plaintiffs claim, not being recorded, were invalid as against the defendant Catharine,—a purchaser in good faith and for value; also, that the evidence established the fact that the deeds from Peter W. Ten Eyck to Carroll, and from the latter to Elizabeth Ten Eyck, were not in fact delivered, and that said transfers from Peter W. Ten Eyck to his wife and from the latter to plaintiffs were obtained by fraud and undue influence. The case came before this general term in 1891, the questions raised by said claim of defendants being before the court for decision. The general term held that the evidence on the trial was insufficient to show that the deeds transferring the premises in question from Peter to his wife were not delivered, or to show fraud or undue influence in the conveyances under which plaintiffs claim title, but decided, as matter of law, that said conveyances were invalid, as against defendants, under the recording act. In the opinion delivered, the following language occurs:

“We have examined all this evidence, and although the learned judge submitted the questions of fact thereby suggested to the jury, and the jury thereupon found in favor of the defendants, we are constrained to say that in our opinion the evidence is utterly insufficient, in that respect, to sustain the verdict. It may be there is a scintilla of evidence in support of the surmise that Peter W. Ten Eyck was of unsound mind, that he was unduly influenced by his wife, that he never delivered the deed to her, and also that Elizabeth never delivered the deed to the plaintiffs; but, of evidence substantially tending to establish either of these propositions, we find practically none." 15 N. Y. Supp. 419.

The judgment which was directed by the justice sitting at said term contains the following clause:

“It is hereby stated, as part of said judgment of affirmance, that but for the recording acts the said judgment, so appealed from, would have been leversed.”

The court of appeals, however, (31 N. E. Rep. 994,) held that defendant Catharine A. Witbeck was not shown to be a purchaser for a valuable consideration, so as to avoid the effect of plaintiffs’ prior conveyance under the recording act, and thereupon sent the case back for a review on the facts.

As will be seen by the foregoing statement, the questions now submitted to us were properly before a former general term, and were there passed upon and decided. This court having, after a deliberate and careful examination of the evidence, on the same case now before it, determined in favor of appellants the questions now again submitted, although its members have changed, could hardly be expected to. reach a different conclusion at this time. If we are not concluded by the former determination, yet the opinion of the learned and experienced members of the former general term may be deemed an authority, and entitled to be respected as such by us. Under the circumstances, I do not think that we are called upon to again discuss this case. I have, however, read and considered the evidence and the briefs of counsel, and I am unable to discover in the case any testimony whatever showing, or tending to show, mental incapacity on the part of Peter W. Ten Eyck, or undue influence or fraud in obtaining the deeds in question. Plaintiff Slingerland is not proved to have taken .any part in obtaining the transfer of the land from Peter W. Ten Eyck to bis wife. For all that appears in the case, such transfer was the uninfluenced act of the grantor, in the carrying out of his previous intention, which he ¡had communicated to the witness Callanan. It was not shown that Slingerland even knew of the transfer, and there is no proof, direct ©r indirect, that any person exercised any influence over the grantor in the matter. Nor is there any satisfactory evidence indicating fraud or undue influence on the part of Slingerland, or any one else, in obtaining the deed from Elizabeth Ten Eyck to the plaintiff. The declarations of Slingerland that he intended to, or should, have a deed of the land in question, do not indicate that he intended to obtain one by fraud or undue influence. It appears that he did not receive such a deed as he desired. If there was any fraud or undue influence, it was for the defendants to show it. I think they failed to do so.

The question whether there was sufficient testimony on the trial, tending to rebut the presumptive evidence produced of the delivery of the deeds which transferred the title from Peter W. Ten Eyck to his wife, to justify a submission of the question of delivery to the jury, is more doubtful. There was evidence that after the alleged transfer the grantor, Peter W. Ten Eyck, with the knowledge and assent of Elizabeth, his wife, leased the premises in suit in Ms own name. There was also testimony of declarations of 'Mrs. Ten Eyck inconsistent with the fact of her ownersMp of the property. But conceding that the trial judge might properly have submitted to the jury the question of the delivery of the said deeds,—there not being, as above suggested, any competent evidence tending to show mental incapacity on the part of Peter W. Ten Eyck, or fraud and undue influence in obtaining such deeds,—the judge should have withdrawn those matters from the jury. He was requested to charge that there was not sufficient evidence to justify the jury in finding that the deeds in question were executed by, through, or under fraud or undue influence; also, that the evidence was not sufficient to justify the jury in finding that the said Peter W. Ten Eyck was not, at the time of executing said deed, of sound mind, and did not fully understand what he was doing, and its effect. He declined to so charge, and exceptions were duly taken. I tin'nk plaintiff was entitled to have the jury instructed as requested, and, on account of the refusal of the judge to so charge, a new trial is necessary. It follows that the judgment should be reversed, and a mew trial granted, with costs to abide the event.  