Appeal from Trial Term, Nassau County.
Action by Robert V. V. Sewell against the Home Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.
Rutger Bleecker Miller, for appellant.
Dickinson W. Richards, for respondent.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
The plaintiff appeals from his judgment for $111, admitted by answer to be due and tendered by an offer of judgment. The action is to recover $5,111 upon a fire insurance policy that covered [115 N.Y.S. 346] real and personal property. The defense is a change " in interest, title, and possession" of the realty against an avoiding provision in the policy. At the close of the evidence the defendant moved for a direction of a verdict for the plaintiff for $111, and the plaintiff moved for a direction for the full amount of his claim. The court granted the plaintiff's motion, under section 1185 of the Code of Civil Procedure. The defendant thereupon moved to set aside the verdict, which was done, and the present judgment was directed.
The learned court decided that there was " a clear change of interest," and the correctness of that decision is challenged on this appeal. The policy was issued in September, 1904, to Underhill, owner of the premises. On October 4, 1906, Sewell and Underhill made a contract whereby Sewell agreed to purchase the premises for $5,000 cash and his purchase-money bond and mortgage for $20,000, payable in 5 years, with 5 per cent. interest, payable semi-annually. The deed was to be dated October 1, 1906. Sewell resided on the premises at the time the contract was made, and continued to reside there until the day of the fire, April 5, 1907. The learned counsel for the appellant contends that there was not a delivery of the deed and a transfer of the premises from Underhill to Sewell until after the fire. A week or ten days before the fire the vendor and vendee met at the former's house, together with Mr. Stoddart, an attorney at law, who had prepared the deed and the bond and mortgage required by the said contract. Mr. Stoddart testifies that he told the said parties that he could not record the instruments until a certain " map" referred to in them was delivered to him, and thereupon the parties left these instruments with him, which were not recorded by him until some time after the day of the fire. " 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 must be both a delivery and acceptance, with the intent of making the deed an effective conveyance." Ten Eyck v. Whitbeck, 156 N.Y. 352, 50 N.E. 966.
There is practically no contradiction by either party of Mr. Stoddart's testimony as to the doings before and at this interview. If there were both parties had moved the court for a direction, and had thus made it the judge of the facts. It is not disputed that upon the execution of the contract, months before, the vendor paid the $5,000 cash consideration and began to pay the interest required by the bond and mortgage. It is not disputed that the deed and the bond and mortgage was fully prepared (save as to the map, which I shall discuss hereafter), were duly acknowledged on March 16, 1904, and were produced at this interview. Mr. Stoddart, asked whether the bond and mortgage were handed to him, answered:
" I don't know as handed. They all were handed. I picked them up. That would be a better way to put it."
" There was, I think, some suggestion that I was to hold onto the mortgage until the map was delivered to me, and upon the delivery of the map I was to record the deed and the mortgage and file the map."
[115 N.Y.S. 347] Both parties made the suggestion. The " map" was a certain survey. Both deed and mortgage made reference thereto; but the location, description, and boundaries were full and irrespective of this map or survey, which was referred to in both instruments, after the location and description were fully set forth, to facilitate the running of a boundary line. The map is described in the said instruments as a survey made by W. H. C. Pynchon, civil engineer, dated January 25, 1907, and the provision as to it in each instrument was " a copy of which is to be filed in the office of the clerk of Nassau county." But the map itself was in existence at the time of this meeting of the parties; for Mr. Stoddart testifies without contradiction:
" The map was not ready. In other words, the map they had there did not belong to them."
And, moreover, the map is, as I have shown, definitely described in both deed and mortgage as dated January 25, 1907 and these instruments were acknowledged on March 17, 1907. Mr. Stoddart wished for a " copy" which could be filed; but even that copy was not to be filed simultaneously with the instruments, because the explicit provision therein was: " A copy which is to be filed." There is no question, then, that when the parties thus met the vendee had some months before paid the consideration, that the vendor was in physical possession, that the instruments were produced complete, and acknowledged, and that they were thereupon left with Mr. Stoddart, who " was to record the deed and mortgage and to file the map," which was afterwards done. Indeed, Mr. Stoddart, so far as the parties were concerned, could have recorded the instruments for them, respectively, forthwith, and could have filed the copy of the map whenever one was produced. The delay in record was a mere matter of business procedure on the part of Mr. Stoddart, who, of course, is above any criticism. There is no ritual of delivery, and record is not essential to delivery. There is not the slightest proof but that each ...