
    FORD v. JAMES.
    September, 1868.
    A delivery of a deed to the agent of the grantee to be held while he shall consider whether he shall accept it,, is not a valid delivery.
    Pending a negotiation for a conveyance, the grantor’s attorney induced the grantee’s agent to advance a trifling sum of money, and receive the deed, on an agreement that the deed should be returned and the money refunded if the conveyance was not accepted. The grantee’s agent caused the deed to be put on record secretly, and returned the money to the grantor’s attorney, representing to him that he had returned the deed to the grantor. Seld, no delivery
    
    
      Hannah Ford brought this action, in the supreme court, against Edward D. James and Sarah, his wife, Albert S. James and Mary L., his wife, and Stephen C. Williams, to set aside a deed as a cloud on plaintiff’s title.
    The land formerly belonged to Letitia Graham, wife of one John Graham, and defendants claimed under a deed executed by them, which plaintiff insisted was never delivered.
    On the trial a witriess, Spencer, testified that he was the agent of the grantors (the Grahams) for the" sale of the premises; that a deed thereof, purporting to convey the land to Albert S. James, was made out and executed, and acknowledged by the grantors, which he had in his hands; that Edward D. James had had some negotiations with witness for the purchase of the land and its conveyance to Albert S.; that Spencer, having the deed in his possession, went to see Mr. Edward D. James and told him he was very anxious he should take the property; that Graham had twenty-five dollars to pay that afternoon,' &o.; that Edward D. James replied, that “he would give me twenty-five dollars, and I might leave the deed with him and call in a day or two, when, if he concluded to take the property, he would pay me the balance, and'if he decided not to take it, he would return the deed; ” that Spencer took the money and gave it to Graham; that some time afterward he met Mr. Edward D. James, and he said he did not think it worth his while to take the property; that he told James he would give him back the money; that he afterward paid to Janies the twenty five dollars, and he said he would send back the papers; that he afterward inquired of him why he had not sent them back, and James told him he had sent them to Mr. Graham. It appeared that he did not send the deed to Graham, but retained it, and caused it to be recorded. There was no claim of any delivery of the deed," other than what was made by Spencer.
    Albert S. J ames and wife conveyed to the wife of defendant Edward D. J ames; but the deed was incorrectly recorded, a mistake being made in the description. She, with her husband, mortgaged the land to Stephen 0. Williams.
    Plaintiff claimed under a conveyance from John Graham and wife, made subsequent to the deed to Albert .S. James and wife.;
    
      Balcom, J., before whom the case was tried, found as a conclusion of fact, that the deed in question was never delivered to Albert S. Jamés or to any one for his use, and, as conclusion law, that it conveyed no title.
    
      The supreme court at general term held, upon the authority of Jackson v. Dunlap, 1 Johns. Cas. 114; Jackson v. Phipps, 12 Johns. 418; Crosby v. Hillyer, 24 Wand. 280, that there was no delivery,
    Plaintiff had judgment, and defendants appealed.
    
      I. T. Williams, for defendants, appellants.
    That the deed was delivered; cited, Coke Lit. 36 a; Touchst. 59; Thorough good’s case, 9 Coke, 137 a; Flagg v. Mann, 2 Sumn. 487; Worral v. Munn, 5 N. Y. (1 Seld.) 229. Albert S. could ratify the delivery to Edward D., his agent. Com. Bank of Buffalo v. Warren, 15 N. Y. 577; Story on Ag. § 258; Brisbane v. Adams, 3 N. Y. (3 Comst.) 131; Sweetson v. French, 2 Cush. 309; Keeler v. Salisbury, 33 N. Y. 648; Hopkins v. Mollineux, 4 Wend. 465.
    
      John JA. BurriTl for plaintiff, respondent.
    
      
       See People v. Bostwick, 32 N. Y. 445; Fisher v. Hall, 41 Id. 416; Fonda v. Sage, 48 Id. 173, affirming 46 Barb. 109; Everett v. Everett, 48 N. Y. 218 ; Crosby v. Hillyer, 24 Wend. 280; Brackett v. Barney, 28 N. Y. 333; Hoag v. Owen, 60 Barb. 34.
      In Carnes v. Platt, the deed was delivered to the attorney employed, by the purchaser to examine the title. . It appeared by the evidence that the attorney was authorized to receive the deed, and it was in fact handed to him, and he held it until the return of his client from an absence from the city, who then refused to accept it.
      
        The New York superior court held that as matter of law this was not a delivery (7 Abb. Pr. N. S., 42; S. C., 38 Sow. Pr., 100).
      This court reversed the decision (March, 1871) on the ground that there being evidence tending to show that the grantor intended to make an effectual delivery, and the recollection of the attorney being, by his testimony, shown to be indistinct, the question whether there had been an effectual delivery was one of fact, which should have been submitted to the jury.
      Judgment reversed and new trial ordered, costs to abide event.
    
   Clerks, J.—

1. The transaction between Edward D. James and Charles S. Spencer had none of the essential requisites of a delivery. An absolute delivery is one which is complete upon the actual transfer of the instrument from the possession of the grantor; and it may be by acts merely, by words merely, or by both combined; but in all cases, an intention that it shall be a delivery must exist. So far from this being an element in this case, at the time the deed was placed in the hands of Edward D. James, he declared that he did not then receive it as a conveyance, but that he would determine, within a day or two, whether his brother would accept it; and, if he determined within that time not to accept it, he would return the deed to Spencer, and receive back the twenty-five dollars, which he had advanced; but, if he determined to accept it within that time, he would pay the remainder of the agreed purchase money. So it is clear that there was and could have been no such acceptance as the law requires. There was no intention, by his own avowal, then, to accept; this was to be determined subsequently. Accordingly, within the time, he resolved not to accept; he called upon Spencer and received back the twenty-five dollars.

2. The conveyance from Albert S. James to the wife of Edward, gave her no rights; the act was not genuine; it was procured by her husband to consummate the fraud, and no consideration was paid. She was evidently not a purchaser in good faith, and so the referee has found. The description, in the record of the deed, was totally different from that in the deed; so” that if subsequent purchasers, before the correction of the record, could be affected by a transaction of this kind, there was no notice to them, actual or constructive. The only one of the defendants whose conduct was bona fide, and who suffered loss from this fraudulent transaction, was Williams But as the mortgagors had no title, only a fraudulent record, pretending to give them- a title, they could convey nothing to any person, however innocent he may be.

The judgment should be affirmed, with costs.

Grover, J.

The finding of the fact by the special term, that the deed dated May 28,1852, from John Graham and wife, to the defendant, Albert S. James, of the land in question, was never delivered, if sustained, disposes, of the case in favor of the respondent, and renders an examination of the other questions raised upon the trial unnecessary. It is obvious, that, if that deed is void for the reason that it was never delivered, all titles derived therefrom by subsequent conveyances must fall with it. The judgment of the special term having been affirmed by the general term, this finding must, by this court, be held- conclusive upon the parties, unless wholly unsupported by evidence. An inquiry cannot be gone into here, as to whether the finding was against the weight of evidence.

[The learned judge here recited the testimony of Spencer as stated above, and continued as follows.] Taking the evidence of Spencer alone, and it clearly appears that he never made any delivery of the deed, conditional or otherwise. He did not deliver it to James, as and for the deed of the grantors, but merely left it with him as depositaryuntil he should determine whether or not he would take the land. This constitutes no legal delivery. A deed may be deposited with the grantee or handed to him for any purpose other than as the deed of the grantor, or as an effective instrument between the parties, without becoming at all operative as a deed. The evidence in conflict with Spencer’s, tending to show that it was delivered as the deed of the grantors, cannot be considered by this court upon this appeal. The supreme court had the power to reverse the finding of the special term, upon the ground that it was against the weight of evidence, but this court has no such power.

The judgment appealed from must be affirmed.

A majority of the judges concurred.

Judgment affirmed, with costs.  