
    TEN EYCK et al. v. WHITBECK et al.
    (Supreme Court, General Term, Third Department.
    December 3, 1895.)
    Deed—Possession—Presumption oe Delivery.
    The execution of a deed, and its possession by the grantee, raise the presumption that it was delivered on the day of its acknowledgment; and where there is no direct evidence that it was not delivered, or that the delivery, if any, was procured by the undue influence of some one interested in the grant, it is error to submit the question of delivery to the jury.
    Appeal from circuit court, Albany county.
    Ejectment by Maria Ten Eyck and another against Catharine A. Whitbeck and "others to recover the possession of certain lands to which plaintiffs claim title in their own right. The defendants allege (1) that the nominal'title of plaintiffs was procured by fraud and undue influence upon Peter W. Ten Eyck, the original source of title, and Elizabeth Ten Eyck, their immediate grantor; (2) the conveyance of said property by said Peter W. Ten Eyck to the defendant Catharine A. Whitbeck. From a judgment on a verdict directed in favor of plaintiffs, defendants appeal. Affirmed.
    Argued before MAYHAM, P. J., and HERRICK, J.
    C. M. Barlow (Hale, Bulkeley & Tennant, of counsel), for appellants.
    W. C. McHarg (J. H. Clute and E. Countryman, of counsel), for respondents.
   HERRICK, J.

This case has been before the court several times (39 N. Y. St. Rep. 634, 15 N. Y. Supp. 418; 135 N. Y. 40, 31 N. E. 994; 69 Hun, 450, 23 N. Y. Supp. 463), and most of the legal questions have been eliminated. On both occasions when it was before the general term of this department, there was a thorough examination of the facts. The additional evidence elicited upon the trial now under review does not seem to me to change in any essential particular the facts as they appeared when the case was last under consideration by us.

"Upon the question of delivery, in addition to the presumption of delivery which arises from the possession of the instrument by the grantee, there is positive evidence—First, of the delivery of the deeds at the time of their execution; and, second, of their having been seen in the actual possession of the grantee, Mrs.,Ten Eyck, several years after their execution, and before their recording. The circumstances relied upon to overcome the presumption of delivery do not appear to me to have been sufficient to warrant the submission of that question to the jury. The case was tried by the same justice who examined the case and wrote the opinion when it was first before this court upon appeal (39 N. Y. St. Rep. 634, 15 N. Y. Supp. 418); and his discussion of the evidence on the questions of delivery and of undue influence, at the conclusion of the trial, is satisfactory, and affords no reason for any further discussion upon those subjects by this court. I can see no reason for arriving at any different conclusion from that arrived at by us when the case was last before this court, and any doubts expressed at that time as to the propriety of submitting to the jury any question as to the delivery of the deed or deeds have been removed.

The judgment and order appealed from should be affirmed, with costs and disbursements.  