Statement of case.

the new theory of the action adopted on the trial, no case was made for relief in equity. (Bailey v. Southwick, 6 Lans 356, 363-366; Bailey v. Briggs, 56 N. Y. 407, 415, 416; Schroeder v. Gurney, 10 Hun, 413; 73 N. Y. 430; Ward v. Dewey, 16 id. 519, 522; Marsh Case, 59 id. 280; Washburn v. Burnham, 63 id. 132; Townsend Case, 77 id. 542.) The General Term was not justified in reversing the decision of the trial judge upon any of the material issues of fact. To jus tify a reversal upon the facts by the General Term, it must appear that the findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said, with a reasonable degree of certainty, that the trial court erred in its conclusions. (Lowery v. Erskine, 113 N. Y. 52, 55; Baird Case, 96 id. 567, 577.) It was a question of fact upon the evidence whether the paper was intended to operate as a deed or as a testamentary disposition, and whether it was delivered as a deed in any manner to the grantee; and the findings of the trial court should, therefore, be maintained. (Crain v. Wright, 36 Hun, 74, 77; 114 N. Y. 307.) It was indispensable to the validity of the instrument as a deed that it was in fact delivered at the time "with the intent that it should take effect as a present conveyance of the land." (Crain v. Wright, 114 N. Y. 307, 311, 312; Wellborn v. Weaver, 17 Ga. 267; Fisher v. Hall, 41 N. Y. 416, 420; Best v. Brown, 25 Hun, 223; Rousseau v. Blair, 60 id. 259, 266; Smith v. Hathorn, 25 id. 159; Scattergood v. Wood, 14 id. 269; Stilwell v. Hubbard, 20 Wend. 44; Williams v. Schatz, 42 Ohio St. 47; Brown v. Brown, 66 Me. 316; Prutsman v. Baker, 30 Wis. 644; Anderson Case, 126 Ind. 62; Hale v. Joslin, 134 Mass. 310; Porter v. Woodhouse, 59 Conn. 568; Bell v. F. Bank, 11 Bush. 34; Cusack v. Tweedy, 126 N. Y. 87.) The deed executed in 1885, even if it had been delivered, is void at law. (Johnson v. Rogers, 35 Hun, 267; Laws of 1887, chap. 537; Beard v. Beard, 3 Atk. 72; Shepard v. Shepard, 7 Johns. Ch. 122; Hunt v. Johnson, 44 N. Y. 27; Whitaker v. Whitaker, 52 id. 368.)

Statement of case.

N. C. Moak for respondent. The General Term having reversed the judgment upon the trial upon questions of fact, the facts are to be reviewed here and to be determined by this court. (Code Civ. Pro. § 1338; Van Wyck v. Watts, 81 N. Y. 352; Hubbell v. Meigs, 50 id. 480; Gurntey v. Miller, 80 id. 181, 183; National City v. New York, 97 id. 645; Ross v. Gleason, 111 id. 683.) The General Term having reversed the judgment of the trial court upon the facts, this court will not reverse the General Term unless there was no evidence upon which it was authorized to determine the facts in such a way as to lead to a reversal. (Nostrand v. Knight, 124 N. Y. 618; Shultz v. Hoagland, 85 id. 464; Godfrey v. Mosher, 66 id. 250, 252.) The trial court was bound to decide the case according to the evidence. On failure to do so it was the duty of the General Term to do so. (Plyer v. German, 121 N. Y. 692; Lomer v. Meeker, 25 id. 361; Kelly v. Burroughs, 102 id. 93, 95, 96; Watson v. Campbell, 38 id. 153, 155-157; A. Ins. Co. v. Aldrich, 26 id. 22.) The trial court erred in finding that there was no consideration paid by plaintiff or received by John Diefendorf as consideration for the deed, either before or after the deed. (Jackson v. McChesney, 7 Cow. 361; Hauxhurst v. Ritch, 119 N. Y. 621; Cushman v. Henry, 75 id. 103; Hand v. Kennedy, 83 id. 140.) The trial court erred in refusing to find that plaintiff took and held possession of said premises as owner thereof. (Landon v. Townsend, 41 N. Y. S. R. 419, 424, 425.) Though a deed from husband to wife is void in law it is valid in equity if founded on good and valid consideration. (Hunt v. Johnson, 44 N. Y. 27; Tallinger v. Mandeville, 113 id. 432; Dygert v. Remerschnider, 32 id. 629; Townsend v. Townsend, 1 Abb. [N. C.] 81, 83; Chadburn v. Gilman, 64 N. H. 353; Majors v. Everton, 89 Ill. 56, 57; Shepard v. Shepard, 7 Johns. Ch. 57; Kelly v. Campbell, 1 Keyes, 29; Peck v. Brown, 2 Robt. 119; Childs v. Connor, 6 J. & S. 471, 474; Phillips v. Wooster, 36 N. Y. 412, 414; Neuforth v. Thompson, 3 Ed. Ch. 92; Brockway v. Fleming, 22 Wkly. Dig. 430; 37 Hun, 640; Armitage v. Mace, 96 N. Y. 538; Shuttleworth v. Win

Statement of case.

ter, 55 id. 629; Seymour v. Fellows, 12 J. & S. 124; 77 N. Y. 178; Mack v. Mack, 3 Hun, 323; Crooks v. Crooks, 34 Ohio St. 610; Deming v. Wilson, 26 Conn. 230; Jones v. Clifton, 101 U. S. 225; Lloyd v. Fulton 91 id. 485; McGregor v. McGregor, L. R. [21 Q. B. Div.] 424; Dale v. Lincoln, 62 id. 22; Story's Eq. Juris. § 1374; Earl v. Peck, 64 N. Y. 596, 599; Darrow v. Walker, 10 J. & S. 6. 10; Lawrence v. McCalmart, 2 How. [U. S.] 452; Miller v. McKenzie, 95 N. Y. 582; Cowee v. Connell, 75 id. 98; McCarthy v. Kearnan, 75 Ill. 292; Notbeck v. Wilks, 4 Abb. Pr. 315, 317-321; Goodell v. Pierce, 2 Hill, 659, 661; Tooley v. Dibble, 2 id. 641, 643; Brown v. Austin, 35 Barb. 358, 359; Foster v. Mansfield, 3 Metc. 412, 414, 415; Thatcher v. Wardens, 37 Mich. 264; Sowerby v. Arden, 1 Johns. Ch. 252; Bunn v. Winthrow, 1 id. 236; Hathaway v. Payne, 34 N. Y. 92; Crain v. Wright, 36 Hun, 74, 77, 78; 114 N. Y. 307; Ernst v. Reed, 49 Barb. 373; Mitchell v. Ryan, 30 Ohio St. 377; Munoz v. Wilson, 111 N. Y. 295; Squires v. Summers, 85 Ind. 252; Latham v. Udell, 39 Mich. 238; Wallace v. Berdell, 97 N. Y. 13, 24, 25; Verplank v. Sterry, 12 Johns. 536; Church v. Gilman, 15 Wend. 556-662; Lady Superior v. McNamara, 3 Barb. Ch. 375; 4 Kent's Comm. 529.) The court erred in finding that the plaintiff is not the owner in fee of the premises in question and in not finding as requested that she was the equitable owner thereof. (Crain v. Wright, 114 N. Y. 307; Carnwright v. Gray, 127 id. 92, 96-104; 57 Hun, 518; Tideman on Com. Paper, § 152; 1 Rand. on Com. Paper, §§ 7, 86, 88, 96, 178; Kinsman v. Birdsall, 2 E. D. Smith, 395; Hawxhurst v. Ritch, 6 N. Y. Supp. 134; 119 N. Y. 621, 622; C. C. Bank v. Warden, 6 id. 19, 28, 30; Hughes v. Wheeler, 3 Cow. 77-84; Rockefeller v. Robinson, 17 Wend. 206, 207; Smith v. Smith, 2 Johns. 235; Mack v. Spencer, 4 Wend. 411; Smith v. Van Doane, 16 id. 659; Richards v. Warring, 39 Barb. 45; Bruce v. Westcott, 3 id. 379; Burley v. Burnhard, 9 N. Y. S. R. 587, 589; 27 Wkly. Dig. 6; 45 Hun, 588; In re Kimmer, 14 N. Y. S. R. 618, 619; 47 Hun, 635; Rowe v. Comley, 11 Daly, 318, 319; SICKELS-VOL. LXXXVII. 14

Opinion of the Court, per BROWN, J.

Brooks v. Schwerin, 54 N. Y. 343; Pursell v. Fry, 19 Hun, 595, 599; Adams v. Honness, 62 Barb. 326; Foote v. Bryant, 47 N. Y. 544; Huston v. Cone, 24 Ohio St. 11, 20, 21; Hodges v. Hodges, 9 R. I. 32; Savage v. O'Neil, 44 N. Y. 298, 301, 302; Jaycox v. Caldwell, 37 How. Pr. 240, 248; 51 N. Y. 395; Holden v. Burnham, 5 T. & C. 195; 2 Hun, 678; Chadbourn v. Gilman, 64 N. H. 313, 314; Van Amburgh v. Kramer, 16 Hun, 207; Childs v. Barnum, 11 Barb. 14; 1 Sandf. 58; Ring v. Steele, 3 Keyes, 451; 4 Abb. Ct. App. Dec. 70; Grant v. Townsend, 2 Hill, 557; Wolcott v. Ronalds, 2 Robt. 620; Goit v. Nat. Prot., 25 Barb. 190.) Upon the facts found by the court, the plaintiff was entitled to judgment. The claim made by defendants constituted a cloud upon plaintiff's title to the premises. (Tisdale v. Jones, 38 Barb. 523; Lounsbury v. Purdy, 18 N. Y. 515; 16 Barb. 376; Craft v. Merrill, 14 N. Y. 456; Foote v. Bryant, 47 id. 545; Bate v. Graham, 11 id. 237; Lewis v. Mott, 36 id. 395; Barlow v. Scott, 24 id. 40; Kenny v. Apgar, 93 id. 539; Baird v. Mayor, etc., 74 id. 386; W. P. I. Co. v. Reymert, 45 id. 705; McKeon v. See, 51 id. 300; Gilchrist v. Comfort, 36 How. Pr. 393.) The answer contained no counter-claim. (Pruyn v. Tyler, 18 How. Pr. 331, 333; Page v. Fazackerly, 26 Barb. 392, 395, 396; Smith v. Hill, 22 id. 656, 660; Munson v. Hegeman, 10 id. 112; Connop v. Meir, 2 E. D. Smith, 304; McKenzie v. Farrell, 4 Bosw. 202; Thompson v. Lumley, 7 Daly, 74; Billings v. Vanderbeck, 23 Barb. 554; Fox v. Decker, 3 E. D. Smith, 150; Seabury v. Ross, 69 Ill. 533; Tasker v. Chamberlain, 38 N. Y. S. R. 476; Equitable Life v. Cuyler, 75 N. Y. 511, 514; Simmons v. Kayser, 11 J. & S. 131, 137, 138; Burrall v. DeGroot, 5 Duer, 379, 382; Bates v. Rosekrans, 37 N. Y. 409; Wood v. Gordon, 38 N. Y. S. R. 455, 456; Caryl v. Williams, 7 Lans. 416; Resch v. Lenn, 31 Wis. 138; Gaff v. Greer, 88 Ind. 122; McConihe v. Hollester, 19 Wis. 269; Dietrich v. Koch, 35 id. 618.)

BROWN, J. The complaint contained all the allegations essential to constitute this an action to determine claims to real property. (Code C. P. §§ 1638, 1639.)

Opinion of the Court, per BROWN, J.

The appellants claim that the proof did not show that the plaintiff was in actual possession of the property. The court found that after her husband's death she continued to reside upon it and assumed to be its owner and collected the rents from the part not used by her.

The property was on the corner of Division and Canal streets in the village of Fort Plain, and a large building covered nearly the whole lot. The first floor was used for stores.

The plaintiff occupied the second and third floors, partly for a millinery and partly as a residence. She testified that she had property in every room in the second and third stories. The other parts of the building were rented to tenants who paid their rent to the plaintiff.

In this occupation there was that foothold upon the ground which is essential to constitute actual possession.

Upon the trial defendants moved to dismiss complaint on the ground that the plaintiff had not been in possession for three years.

Under the statute it was requisite to the maintenance of the action that there should have been possession for three years or more by the plaintiff or by her and "those whose estate she had." The plaintiff's husband had been in possession for many years and it was only necessary that the total time of the possession of both should be three years. It is not essential that such possession should be adverse for three years to the defendants' claim.

Between the date of the conveyance under which plaintiff claimed and the commencement of this action, there was a period of about two years and eight months, and we think the action was properly brought.

Upon the facts of the case we concur in the result reached by the General Term.

The weight of the testimony was to the effect that Diefendorf intended to make a present conveyance of his property to his wife, and we think there is very slight ground to hold that he intended to make a will.

He inquired of Doctor Ayres if he could draw a deed. The