Gilbert v. Deshon

• Decision Date: 29 November 1887
• Citation: 107 N.Y. 324,14 N.E. 318
• Parties: GILBERT v. DESHON and others.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 324

14 N.E. 318

GILBERT

v.DESHON and others.¹

Court of Appeals of New York.

November 29, 1887.

Appeal from general term, supreme court, First department.

This was a suit for partition of real estate belonging to the estate of John Wilkie, deceased, and was brought by John W. Gilbert, one of the heirs. Mrs. Margaret G. Westerfield, also one of the heirs, was entitled to one undivided third part of the land, and together with her husband, Joseph H. Westerfield, executed a deed, absolute in form, conveying such part to Henry S. Deshon, one of the defendants. This deed was delivered by Mrs. Westerfield to her husband to be given to Deshon as an equitable mortgage to secure $700; but the husband delivered it in payment of a much larger sum which he owed Deshon. When a sale of the property was effected, one-third of the proceeds was brought into court pending the settlement of a controversy between Mrs. Westerfield and Deshon as to the right to such one-third part, Deshon claiming it under the deed, and by virtue of the terms upon which it had been delivered to him by the husband. On the application of Mrs. Westerfield, she and her husband had been made defendants in the suit. The court below ordered the proceeds to be paid to mrs. Westerfield, and the defendant Deshon appealed.

N. C. Moak, for appellant.

W. H. Secor, for respondents.

FINCH, J.

We are unable to see that, upon the facts of this case, as settled by the findings of the trial court, there is any room for the application of the doctrine invoked in behalf of the appellant. That an agent dealing with innocent third persons, having an apparent ownership or authority conferred by an act of the principal, shall be deemed to be owner or possess the requisite authority as against the principal in behalf of such third persons, whatever the truth may be, is a settled and just rule, but does not apply to the case at bar. Mrs. Westerfield did not confer upon her husband the indicia of ownership. The title to her land never went to him or passed through him. On the contrary, her deed in his possession showed that she was conveying to Deshon herself upon some contract between grantor and grantee. Her husband in possession of a deed running to Deshon stood, both in appearance and in fact, as her agent to deliver it upon her terms and in accordance with her directions; for he knew that some terms and conditions were imposed by the grantor to qualify the delivery. He knew that the...