The action was commenced to recover the amount of the loss sustained by the plaintiffs by the destruction of a barn by fire, insured *488by a policy of insurance issued by the defendant, insuring the building alleged to be owned by the plaintiff Rosenstein against such loss. The loss, if any, was made payable to the plaintiff building association, as its interest might appear, it being the owner of a mortgage upon the premises. The policy was the standard policy, and contained the usual provision which provided that the policy should- be void in case there should be any change in the ownership or interest in the property, without the consent of the company indorsed thereon. The policy was issued on the 24th day óf May, 1900. The barn was destroyed by fire on the 19th day of March, 190-1. The amount of the loss is not in dispute.
After the policy was issued the plaintiff' Rosenstein and his wife, without the knowledge or consent of the defendant, executed a warranty deed in the usual form of the farm upon which the barn was situated, in which deed his son, Abraham Rosenstein, was named as grantee. The consideration expressed in the; deed was $3,000. It was procured to be recorded in the office of the clerk of Orleans county on the 14th day of January, 1901, by the grantor, and since that time has been in his possession. The deed was executed and recorded at the instance of the son, and the learned trial court found that it was never delivered to the grantee, although he knew of its execution; that no part of the consideration was ever paid; that the grantor continued in possession of the premises after the deed was executed the same as before, and that- it was not the intention of the parties that any title to or interest in. the farm should pass to the grantee by virtue of such deed ; that it was made and recorded for the purpose of preventing the collection of a judgment which had been recovered by a creditor against the grantor, the father of the grantee, and for no other purpose. The court also found that, notwithstanding the éxecution and recording of such deed, the plaintiff Solomon Rosenstein continued at all times to be the owner of the farm in question and of the building insured. The facts upon which such- findings were based were testified to by the grantee, and are not contradicted, the defendant having offered no evidence to rebut the same. The only defense urged is that, as matter of law, the execution and recording of the deed in question rendered the policy void.
*489It seems to me that the decision in Forward v. Continental Insurance Co. (142 N. Y. 382) is decisive of the case, and compels an affirmance of the judgment upon the facts found by the court. In that case the policy covered a store, stock of goods and store fixtures, and the personal property was destroyed by fire. The policy contained substantially the same provisions in relation to a change of title or interest as the policy in question. The owner executed a bill of sale of the personal property, to his brother, which was filed, but possession of the property was not surrendered, and the grantor continued in possession of the same. The bill of sale was given for the purpose of preventing the creditors of the grantor from recovering their debts from him. Ro consideration was paid for the transfer of the property included in the bill of sale ; there was no change in possession, and it was not intended' by the parties to such bill of sale that there should be any change in the ownership of or interest in the property. It was held that the policy was not avoided. The vital point in that case Was not as to the form of the transfer, but was as to whether or not the parties intended by it to transfer the title to-the property or any interest therein. It having been found by the trial court that they did not so intend, it was held by the Court of Appeals that such pretended transfer did not affect the policy of insurance upon which it was sought to recover.
In the case at bar it should be borne in mind that the trial court has found upon sufficient evidence that it was not the intention of 'the father to convey to the son, and that it was not the intention of the son "to receive from the father, the property which was in form conveyed, or any interest therein.
I think the distinction which is sought to be drawn in the prevailing opinion between a conveyance of real estate by a deed and a transfer of personal property by a bill of sale is entirely immaterial. The point upon which the Court of Appeals laid stress in the Forward Case (supra) was the intention of the parties; was the fact that the grantor did not intend to convey, and that the grantee did not intend to receive, by virtue of or under the bill of sale, any interest in or title to the insured property.
Again, we call attention to the fact that in the case at bar the learned trial court has found that such deed was never delivered by the plaintiff Solomon Rosenstein, the grantor named therein, and *490was never accepted as such by the grantee; that the consideration expressed in said deed was the sum of $3,000, but in reality there was .no consideration whatever for said deed; that said deed was colorable only, and was not intended to transfer the title to said premises.
In the case of Barry v. Hamburg-Bremen Fire Ins. Co. (110 N. Y. 1) it was held that where a policy of fire insurance, contained a condition to the effect that a sale'or transfer of the property or any change in the title, without the consent of the company, would void the policy, a deed of the property executed simply to secure a debt was not within the condition and did not affect the policy.
In the Forward Case (supra), Judge O’Brien, in writing the opinion of the court, said : “ When the transfer or incumbrance is merely colorable or nominal and not real or effective, the reasons that induced the stipulation do not apply. Was there any real sale or transfer of this property within the meaning of the policy ? Nothing was done except to execute and file a paper. There was no intention, in fact, to transfer the title or vest any beneficial interest in the nominal vendee. There was no debt to be enforced, no consideration passed;, and the use and possession remained unchanged. The filing of the paper added nothing to its validity. It was not a mortgage, nor intended, as security for any debt. It was a mere paper transfer without consideration and without delivery of possession, and while it had the form it had none- of the legal elements necessary, even between the parties, to constitute a valid contract of sale. In legal effect, it was, I think, the same as an unexecuted gift. The worst that can be said of it is that it was intended to defraud creditors, but if that be true the moral hazard which was the basis of the condition of the policy would still be absent, since the plaintiff’s interest in the property at the time of the insurance was, in fact, the same as before the paper was executed.”
The part of the opinion of Judge O’Brien above quoted covers in all essentials the. facts of the case at bar. As we have seen, and as the court found upon sufficient evidence, the grantor did not intend to convey ; the grantee did not intend to receive a conveyance ; the possession remained unchanged ; a delivery of the deed was not in fact made with intent that it should convey title or interest.
*491In the case of Ten Eyck v. Whitbeck (156 N. Y. 341) the court said : “ The delivery of a deed is essential to the transfer of title; and there can be no delivery without an acceptance by the grantee. 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. (Jackson v. Phipps, 12 Johns. 418; Jackson v. Leek, 12 Wend. 105 ; Brackett v. Barney, 28 N. Y. 333, 340; McIlhargy v. Chambers, 117 N. Y. 532, 539, 541; Younge v. Guilbeau, 3 Wall. 641.) ”
Many other cases of like import might be cited, but it would seem that those referred to should be regarded as controlling upon the question presented by this appeal. Was there an intention to transfer or convey the title to the insured property? The trial court by its finding has said no. Was there an intention on the part of the grantee to acquire by such deed any title to or interest in the premises ? The answer of the trial court is in the negative. Was there any delivery of the deed or any intention to deliver it? Again the finding of the trial court is in the negative. The possession of the premises remained unchanged. No consideration was paid by the grantee for any transfer to him of the premises. It was simply a colorable transfer, made for the purpose of preventing the creditors of the grantor from recovering their indebtedness. Under those circumstances, and assuming those to be the facts, under the decisions referred to, we think it cannot be held that the condition in the policy was violated, but, on the' contrary, that the plaintiff is entitled to recover.
If the question had not been decided by the court of last resort, we might be quite willing to assent to the reasoning and logic of the majority of the court, as expressed in the prevailing opinion, but as it seems to have been decided we should yield to such decision.
It follows that the judgment should be affirmed, with costs.
Judgment reversed and new trial ordered, with costs to appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.