
    The Philadelphia and Reading Coal and Iron Co., Plaintiff, v. Martin Devoy et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    December, 1898.)
    Fraudulent conveyances — Delivery — Failure to record excused.
    Where a brother delivered to his brother-in-law a deed to his sisters of the homestead and the sisters thereafter remained in exclusive possession, although he paid the taxes and also once or more included the land in a statement of his assets, the court, in view of the beneficial nature of the instrument, concluded that a delivery of the deed had been established as against judgment creditors of the grantor; and also held that a delay of eight years in recording the deed was not with a fraudulent purpose, but probably resulted from inattention upon the part of the grantees.
    Action by plaintiff as judgment creditor of the above-named defendant Martin Devoy to set aside a purported deed from Mm to the other defendants upon the grounds:
    1. That there was never any sufficient delivery of it.
    2. That it was fraudulently kept from record to enable the grantor to maintain a fictitious credit.
    T. W. Taylor, for plaintiff.
    Lewis & Crowley, for defendants.
   Hiscock, J.

The defendants are brothers and sisters. The deed in question was executed in 1885. It was not recorded until shortly before the grantor became insolvent and plaintiff’s judgment was recovered in 1893. During that time it remained in the possession of one McGMre, a brother-in-law of defendants, to whom it had been delivered when executed. The grantor executed the deed in connection with the occasion of his marriage. The premises are the homestead before that occupied by him and the other defendants, and ever since by the latter, he having gone elsewhere. He announced Ms purpose of executing this conveyance to them and they knew of its execution and delivery to their brother-in-law for them. The defendant Martin has paid the taxes 'and insurance on the premises since the deed was executed and at one or more times in giving a statement of his assets has included this land which is* said to be worth from $3,000 and $4,000. The sisters are maiden, ladies and so far as appears of no business experience.

A review of all the evidence leads me to the conclusion,, adverse to plaintiff’s claim, that the deed is not void or fraudulent. In view especially of the beneficial nature of the instrument there is sufficient evidence to establish a proper delivery. The failure to* record was not, I think, due to fraudulent purpose. Its execution, was apparently a family matter, and in pursuance of some duty which the grantor felt to provide for his sisters. The payment by him of taxes and insurance after its execution is doubtless to be accounted for in the same way rather than upon the theory that he regarded the property still his or desired to suppress knowledge of the conveyance. The grantees were actually in possession of the premises to the exclusion of the grantor. Under these circumstances, in my judgment, the deed was allowed by the grantees, and their agent McGuire, to remain unrecorded through inattention or the feeling that there was no necessity to record, rather than through purpose to cheat creditors.

Judgment and findings may be prepared dismissing plaintiff’s complaint, with costs.

Complaint dismissed, with costs.  