This action was brought to eject the defendant and her tenants from certain premises in the city of Mew York. Prior to the 10th of October, 1885, the defendant had been the owner of the premises in question. Upon that day she caused a deed of such premises to one John Doorley, her brother, to be drawn by her attorney, and she signed and acknowledged the same and asked the attorney to have the same recorded, which was done, and the deed so recorded' was returned to her. The consideration expressed in the deed was $1,000, which was not paid at the time it was signed, and there is no evidence that it ever was paid. The defendant remained in possession of the premises, collecting the rents thereof. Some time in the year 188T the defendant delivered this deed, together with other papers, to Mr. W. F. Browne, an attorney who was then doing busi-’ ness for her, for safe-keeping. In 1890 or 1891, the grantee named in the deed, John Doorley, who was known to Mr. Browne, called upon him and said: “ You have a deed belonging tome.” Mr. Browne replied: “ I don’t know that I have,” and he said, “ The deed from Mrs. Gorman or Kelly ” (the defendant, Mrs. Kelly, having subsequent to the signing of the deed married a man named O’Gorman). Mr. Browne said: “ I have some papers belonging to your sister, Mrs. O’Gorman; I will look and see; there may be something among Mrs. O’Gorman’s papers.” Mr. Browne .further testified: “ I found this deed and said, ‘ Is that it ? ’ and he said *5931 Yes.’ I said, ‘ If it is yours take it,’ and I handed it to him. I never heard anything about this deed again till just prior to the beginning of this suit.”
Mr. Cooper testified that John Doorley, the grantee named in the deed, called at his office about the year 1889, having the deed in his possession, and stated to him that he desired to build a brick flat on the lot, and that his. sister had leased the premises to a tenant who then occupied the same, and he wanted to know how he could get rid of the tenant so as to get possession of the land.
Doorley having died, leaving a will devising all his property to his brother, Timothy Doorley, the latter commenced this action of ejection. The claim upon the part of the defendant was that she had never completed the execution of the deed by a delivery thereof. The question in regard to the delivery was submitted to the jury'by the court, both parties having moved for the direction of a verdict in their favor. The jury having rendered a verdict in favor of the defendant, from the judgment thereupon entered and from an order denying a motion for a new trial, this appeal is taken.
It is claimed upon the part of the plaintiff that the record of the deed by Mrs. O’Gorman was conclusive evidence of its delivery to the plaintiff’s testator. While it is undoubtedly true that the record of a deed is presumptive evidence of delivery,- there is no rule that such record is conclusive upon the question, and the party against whom delivery is claimed may show the circumstances under which the record was made so as to rebut the presumption. It is a familiar principle that no written contract can be executed without a delivery of the contract. Delivery is as necessary a part of the execution as the signing and sealing of the instrument. Delivery to a. third party in escrow is not a complete delivery; and delivery tO' the register for the purpose of recording is not a delivery if it appears that it was not intended to operate as such.
The testimony of Mr. Cooper shows that Mrs. O’Gorman had m> intention to deliver such deed then. She was endeavoring, in case of her death, to provide for her favorite brother — and this was all. The circumstances under which the deceased procured possession of the deed as developed by the testimony of Browne, shows that it was without the defendant’s consent. She delivered this deed, with *594.her, other, papers,, to Browne for safe-keeping; and he delivered.it to the brother upon his application without any authority from the defendant. These facts show beyond question that she- never intended that there should be a complete execution of the instrument, which would have been accomplished had she . delivered the same to the grantee named therein. ' ,,
Various criticisms are made upon thé charge of the learned judge' by the counsel for the appellant, it being claimed that some of the remarks contained therein were not sustained by the evidence and Were erroneous in law. We do not consider those questions) as it appears that .no exception was taken to the charge,' and it is not apparent - that any injustice has been done; therefore) even if erroneous, the judgment appealed.from should not be disturbed.
We'think that the. judgment and order appealed from should be affirmed,, with costs.
Rumsey, Williams, Patterson and Ingraham, JJ., concurred.
Judgment and order affirmed,, with costs.