Harley H. Baker, Appellant, v. The German-American Insurance Company of New York, Respondent

Harley H. Baker, Appellant, v. The German-American Insurance Company of New York, Respondent. Third Department, June 24, 1909. Insurance — deed — conveyances vesting title to lands insured — erroneous nonsuit. A father by deed and bill of sale conveyed certain real and personal property to his son with an understanding that the deed, which reserved a life' use to the grantor, should not be recorded during his lifetime. As part of the same transaction the property, together with other property conveyed at the same time, was mortgaged tó a third person ■ to pay an indebtedness of the grantor. Thereafter the grantor, unknown tó the first grantee, deeded the same property in trust to one of his daughters who recorded the conveyance. Thereafter the first grantee transferred to his sisters his interest in the personal property, and . they afterwards reconveyed the same by bill of sale to his wife. The second grantee of the real estate leased the premises with the knowledge and consent of the first grantee, but in her own name. The property, both real and personal, was injured by fire at a time when- the plaintiff was in possession. In an action on the fire insurance policy taken out by the first grantee, Held, that under the circumstances the defense that the plaintiff was not owner of the property so as to avoid the policy was untenable, as the subsequent delivery of the trust deed did not divest the title of the first grantee. Held, further, that as the plaintiff testified that he was owner of certain personal property which had never been owned by his father or covered by either of the bills of sale, a nonsuit was error in any view of the case. Appeal by the plaintiff, Harley H. Baker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 20th day of November, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Clinton Trial Term. The action was to recover upon an insurance policy for the loss of the plaintiff’s house, bam and certain personal property. The defense was that the plaintiff was not the owner of the property, and that this standard policy provided that it should be void if the interest of the insured be any other than an unconditional and sole ownership. The real property belonged to Joseph Baker, the father of the plaintiff, and in 1900, in the presence of the plaintiff and his two sisters and a reputable attorney he delivered to the plaintiff a deed of the property in question, and a like deed to each sister of certain other property, and directed that the deeds be not recorded during his lifetime. As a part of the same transaction all of the property covered by the deeds was mortgaged to one' Knapp to pay certain indebtedness of the grantor. Each deed pro-, vided that they were delivered simultaneously, and the lands were-all bound alike by the mortgage. It was stated at the time that there was a mortgage against the plaintiff, and the grantor directed that none of the deeds should be recorded during his lifetime, He made and delivered a bill of sale of his personal property to the plaintiff and the two sisters at the same time. Each deed reserved to the grantor the use of the property during his lifetime. About a year after Joseph Baker deeded the property which he had formerly conveyed to the plaintiff and to his daughter Frankie in trust to her, which deed was thereupon promptly recorded. The terms of the trust do not appear. Plaintiff did not know of the conveyance until after its record. ■ The plaintiff transferred to his two sisters his interest in the personal property covered by the bill of sale from the father. Frankie leased the farm which had previously been deeded to the plaintiff, for a term, with his knowledge and consent but in her name. The Knapp mortgage had been paid before the fire. The plaintiff, upon getting married, entered into possession of the property and was occupying the same at the time of the lire. The plaintiff’s two sisters gave a bill -of sale of the interest in the personal property which they derived from the plaintiff to his wife. The court nonsuited the plaintiff upon the theory that he was not the owner of the real or personal property. S. L. Wheeler, for the appellant. Irving G. Hubbs, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: The evidence shows clearly the execution and delivery of the deed of the farm by the father to the plaintiff and that it was kept from record so that the same should be kept temporarily at least from the creditors of the plaintiff. That did not, however, affect the equitable division which the father was making of his property among his children. If the deed was made and delivered, as the evidence tends to show, the circumstance that it was not recorded for the purpose stated would not justify the defense interposed by the defendant. The fact that a trust deed was afterwards given by the grantor to the sister covering these premises together with the premises deeded to her, does not divest the plaintiff of the title which he received from his father. Upon the evidence it seems clear that the plaintiff was the owner of the real estate. The plaintiff swears that he was the owner of the personal property mentioned in the proof of loss, none of which was ever owned by his father or covered by either of the bills of sale. The nonsuit, in any view of the case, was not warranted. (Donley v. Glens Falls Ins. Co., 184 N. Y. 107.) The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.