
    Marion A. Holbrook, Appellant, v. Inez F. Truesdell and Frank Whelan, Respondents.
    
      Delivery of a deed by a father to his daughter —proof that it was done in apprehension of a judgment which in fact was not recovered against the father — the transfer of title depends on the intention of the parties—oral evidence is admissible to establish the intent.
    
    A widower having one child conveyed a farm to his daughter for a nominal consideration and love and affection and delivered the deed thereof to his daughter. It was understood at the time of the execution of the deed that the title was not to become operative in the daughter unless judgment was recovered against the father in an impending litigation. The action in question was settled before judgment and the deed, which had never been recorded, was returned by the daughter to her father and destroyed by him.
    After the alleged delivery of the deed, the father remained in the exclusive possession of the farm until the time of his death, fifteen j'ears thereafter,exercising unqualified and unmolested acts of ownership over the same. He subsequently remarried and conveyed the farm to his second wife by a deed which was at once recorded.
    In an action brought by the daughter after her father’s death against the second wife to recover possession of the farm upon the ground that title became vested in her by the deed which was subsequently destroyed, it was
    
      Held, that whether there had been a valid, effectual delivery o-f the,deed sufficient to transfer the title to the daughter, depended upon the intention of the parties at the time;
    That such intention was a matter for the jury to determine and that a verdict that the delivery of the deed yas conditional only, and was not to become operative until the rendition of a judgment against the father in the threatened litigation, which 'contingency never happened, was amply supported by the evidence;
    That proof, tending to show that no transfer of the title was contemplated by the delivery of the deed, did not come within the condemnation of the rule prohibiting oral evidence to vary the terms of a written instrument.
    Appeal by the plaintiff, Marion A. Holbrook, from a judgment of the Supreme Court in favor of the defendants,, entered in the office of the clerk of the county of Wyoming on the 10th day df October, 1903, upon the Verdict of a jury; and also from an- order entered in said clerk’s office on the 10th day of October, 1.903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      C. A. Van Arsdale and Bartlett, Bartlett for Evans, for the appellant.
    
      Irving G. Botsford, for the respondents.
   Spring, J.:

Elon GL Truesdell, the, father of the plaintiff, owned a farm of 154 acres in the town of Castile, Wyoming county. On the 3d day of July, 1885, he executed a conveyance absolute in form, of said premises to the plaintiff and handed the deed to her. At the same time he executed a bill of sale of all his personal property to his daughter in form, delivering the instrument of transfer to her. The conveyance purported to be for a nominal consideration and “love and affection,” and there was in fact no substantial consideration therefor. Truesdell wa.s then a widower. An action against him was imminent, which lie-evidently apprehended would result in a judgment against him. The circumstances pertaining to this impending litigation were thoroughly canvassed between the father, daughter and her husband, and the execution of the conveyance was deemed the most feasible way to avert the effect of a judgment against Truesdell. The understanding was at the time of the execution of the deed that the title was not to become operative in the plaintiff unless judgment was recovered against him. The litigation .was subsequently settled and no judgment was ^recovered. The deed was never recorded, and subsequently the plaintiff returned it to Mr. Truesdell, who destroyed it. At the time he suggested to his daughter that she reconvey the premises to him, but she claimed that this was unnecessary, as the deed had not been recorded.

■ After thé alleged delivery of the conveyance, Mr. Truesdell remained in the exclusive possession of the farm until the time of his death, in September, 1900, exercising unqualified and unmolested acts of ownership of the same as before the execution of the deed.

In 1894 he married the defendant Inez F. Truesdell, and on June 2, 1900, conveyed the farm to her, and that deed was at once recorded, and since the death of her husband she has continued in the possession thereof by virtue of such conveyance.

The plaintiff has sued to recover the possession of the farm, alleging that the title became vested in her by the conveyance from her father. The jury has determined upon evidence amply justifying the verdict that it was not the intention of Mr. Truesdell and the plaintiff to transfer the title to her, but the delivery was merely conditional, only to become operative upon the rendition of a judgment against him in the threatened litigation, a contingency which never happened. The evidence bearing upon this subject was given by the witnesses on b.ehalf' of the plaintiff, and is practically without contradiction.

The question of the delivery of the deed involved, its acceptance by the plaintiff, and whether there was a valid effectual delivery to transfer the title, depends upon the intention of the parties at the time and that was for the jury to determine. (Ten Eyck v. Whitbeck, 156 N. Y. 341.)

The court in that case say (at p. 352): “ The delivery of a deed is essential to thp transfer of title, and there can be no delivery without an acceptance by the grantee. 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 tnust be both a delivery and acceptance with the intent of making the deed an effective conveyance. * * * While the presumption is that a deed was delivered and accepted at its date, it is a presumption that must yield to opposing Evidence.” In the present case the fact that there was no consideration for the deed, that it .was never recorded, was returned voluntarily to the. alleged grantor, that he remained in undisturbed possession as apparent owner of this property until his death, although it is not .claimed there was any reservation in the conveyance, are potential in confirmation of the verdict of the jury that no vesting of the title in the plaintiff was intended.

Proof tending to show that no transfer of the title was contemplated does not come within the condemnation of the rule prohibiting oral evidence to vary the terms of a written instrument. (Higgins v. Ridgway, 153 N. Y. 130; Persons v. Hawkins, 41 App. Div. 171.)

The contents of the conveyance are not impugned, but the contention is that the delivery was conditional, and that the condition essential to maké it absolute never arrived, and the proof was received solely as bearing upon the purpose in passing o ver the conveyance to the plaintiff.

The judgment should be affirmed, with costs. ■

All concurred.

Judgment and order affirmed, with costs.  