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Hall agt. Hall.

manding any kind of relief to which he supposed himself entitled, and he is not confined to one kind of relief. I do not see that the defendant has anything to do with the form of the relief demanded. He cannot demur to the relief. If he fails to answer, his rights are protected by the provision that the relief granted is not to exceed the demand in the complaint ; if the defendant answers, then the form of the demand is quite unimportant, as the court may then grant any relief consistent with the case made by the complaint, and embraced within the issue.

This is not the case of two actions improperly joined in the complaint, but a case where the facts stated may constitute one of two actions, and which of the two is to be determined upon the trial. Regarding the action as for a partition, then there is much surplusage and immaterial matter in the complaint, and the remedy for this, would be a motion to strike out under the 160th section of the Code.

. Regarding the action as for the specific performance then there is perhaps little or no immaterial matter in the complaint.

The order appealed from should be reversed with $10 costs.

Carnes agt. Platt.

N. Y. SUPERIOR COURT.

WILLIAM R. CARNES, respondent agt. GEORGE W. PLATT,

appellant.

The delivery of a deed, is essential to its effect; and that effect is determined not loy

the nominal date, but by the legal delivery of the conveyance. And acceptance by the grantee is indispensable to an effective delivery. An absolute acceptance by

a July authorized agent may operate as a good delivery to the grantee. Where the circumstances are undisputed, delivery or no delivery is a question for

the court. The office of a jury is to find facts upon conflicting evidence. If there is no dispute

and the proof is clear, then it is the duty of the court to apply the law and pronounce judgment. And even where the evidence is not wholly on one side, yet if a verdict would be set aside as being against the clear weight of the evidence,

the court should direct the verdict. It is an elementary rule, which forbids a man to insist, at different times, on the

truth of each of two conflicting allegations, according to the promptings of his private interest.

General Term, March, 1869.

The action was to recover possession of certain real property in this city.

Upon a former trial, the jury found a verdict for the defendant, which upon appeal was set aside and a new trial ordered.

On the new trial, at the close of the evidence, the defendant's counsel made the following requests:

First-To direct a verdict for the defendant, on the ground that it was clear, upon the uncontradicted evidence in the case, that the deed to Charles W. Houghton to Charles L. Anthony, covering the premises in question, was delivered, and the title thereby passed from said Houghton to said Anthony, before the recovery of the judgment in favor of the Merchants’ Bank.

SecondIf the foregoing request should be denied, then,

Carnes agt. Platt.

to submit to the jury the question, whether Charles W. Houghton handed the deed aforesaid to Wetmore with in tent to deliver the same as his deed for the use of Anthony:

Third—Whether Wetmore had authority as agent for Anthony to accept a delivery of the deed at the time it was left with him.

FourthWhether the assignment of the judgment was left procured from the Merchants’ Bank for the benefit and on behalf of the said Charles W. Houghton, or in collusion with him for the purpose of enforcing the same as a lien upon the premises in question.

The justice refused each of such requests, and refused to submit any question to the jury; to which refusals, and to each of them, the defendants' counsel excepted.

The justice thereupon directed the jury to find a verdict for the plaintiff, for an estate for his life in the premises described in the complaint, with a right to the present possession, to which direction the defendant's counsel duly excepted.

The jury thereupon found a verdict for the plaintiff, in accordance with the above direction.

The defendant appealed from the judgment.

DANIEL T. WALDEN, for plaintiff, respondent.
JAMES C. CARTER, for defendant, appellant.

By the Court, McCunn, J. The appeal presents but single issue for decision in this court; and that is, was the conveyance from Houghton to Anthony of the premises in controversy, delivered before the 10th of August, 1854, the date of record of the judgment of the Merchants' Bank of Boston agt. Charles W. Houghton ? If the docketing of the judgment be prior to the delivery of the deed, then the title of the respondent is indefeasible. If the delivery of the deed were prior to the record of the judgment, then the appellant is entitled to a new trial.

Carnes agt. Platt,

The delivery is essential to the effect of a deed; and that effect is determined not by the nominal date, but by the legal delivery of the conveyance.

And, when the circumstances are undisputed, delivery or no delivery is a question for the court.

On the uncontroverted facts of this case, I infer, as matter of law, there was no delivery of the deed from Houghton to Anthony previous to the docketing of the judgment in favor of the bank.

Acceptance by the grantee is indispensable to an effective delivery. An absolute acceptance by an agent, may operate a good delivery to the grantee. But, in the first place, it is apparent, on the face of the transaction, that Wetmore was the agent of Anthony to examine the title, and for no other purpose; and, secondly, that he did not in fact assume to accept the conveyance. He held it until the return of Anthony to the city; and the judgment having been meanwhile recovered and docketed against the grantor, Mr. Anthony, the grantee, then declined to accept the deed. Acceptance of a beneficial conveyance may be presumed; but the presumption in this case is repelled by the positive refusal of Anthony.

By reason of the cloud on Houghton's title, arising from the judgment, Anthony refused to consummate the arrangement of which the delivery and acceptance of the deed were essential conditions; and by the abandonment of the whole arrangement by Anthony, the conveyance necessarily became a nullity. The consideration of the conveyance was the release by Anthony of an attachment on Houghton's property ; but on discovery of the cloud upon Houghtitle, Anthony proceeded to enforce his attachment. Here is the strongest possible evidence of rejection of the deed by Anthony, and neither he nor his privies can now be heard in a court of justice to assert the operative effect of the repudiated conveyance.

It is an elementary rule, which forbids a man to blow hot

Carnes agt. Platt.

and cold with reference to the same transaction—to insist at different times on the truth of each of two conflicting allegations, according to the promptings of his private interest (Broom's Legal Maxims, 4th ed., 169.)

The judgment of the court below, finds support as well in technical law as in substantial justice.

MONELL, J.-The new trial of this action was upon substantially the same evidence as was given upon the first trial. The only difference claimed by the appellant's counsel is in respect to the consideration of the deed from Anthony to Edwin and Elijah Houghton, and the consideration of the mortgage to the defendant.

Upon the first trial, it secms to me, the charge to the jury must be deemed to have assumed that there was sufficient proof of a delivery of the deed to the defendant, and the jury were instructed that if they found either that it was agreed upon between Anthony and Charles Houghton to take the property in question and release the Rhode Island property, or that the purchase of the judgment in Boston was only made for the benefit of Houghton, they should find for the defendant.

Upon the appeal, the charge was held to be erroneous, not for assumiming that there had been a delivery of the deed to Anthony prior to the title acquired by the plaintiff (which the learned justice who delivered the opinion of the court would not admit had been assumed), but for assuming that the mere making of the agreement between Anthony and Charles Houghton transferred the legal title to Anthony, Nevertheless, I think the question of the delivery of the deed to Anthony was involved, and it required, as it certainly did receive, an examination of all the evidence touching such alleged delivery ; and, as the court then distinctly decided that point, it is res judicata.

The questions then examined were whether the leaving the deed with Wetmore was a delivery thereof by Houghton, as his deed to Wetmore for the use of Anthony, with

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