However singular may he the circumstances presented at the trial under consideration, the same measure and rules of evidence must be applied to it, as if it were an ordinary case. If a deviation from this course were permitted, because criminal or dishonorable conduct, on the part of any-of the litigants, was disclosed in the controversy, we should be constantly constrained to disregard the principles which the law prescribes; and, I apprehend, the rules would become exceptions, and exceptions the rules. For it is the sad result of judicial experience, that the majority of litigated actions originate in some transgression of moral duty, or some breach of sacred honor, calculated to enlist our sympathies, or to excite our detestation.
In the case before us the complaint alleges, that on or about 1st September, 1845, the defendant Mrs. Livingston, then Eliza B. Blackwell, in consideration of the sum of $11,000, conveyed to the plaintiff one equal undivided moiety of two lots of land, with the buildings, &c. thereon, one in Courtlandt street, and the other in Broadway in this city, and that the deed was duly acknowledged before Dayton Hobart, a commissioner of deeds. It further alleges, that the deed remained in the possession of the plaintiff more than eight months, when Alfred S. Livingston, one of the defendants, asked permission to look at it; that the plaintiff handed it to him, under a promise that he would return it in a short time. It alleges that Livingston acted at this time as Moore's agent in the management of the premises, and that -he continued to act in that capacity, collecting and paying over the rents to the plaintiff, and actihg to his entire satisfaction until the month of October, 1851, when Livingston set up the pretense, that the property in question belonged to the said Eliza B. Blackwell, denying that he had ever received a deed from the plaintiff.
*556The plaintiff demands as relief in- this - action, .that the defendants and each of them may be directed and decreed to deliver this deed to him, and in case the same be lost or destroyed, that the defendant Eliza B. Blackwell may be decreed to execute and deliver a new conveyance of the said premises to the plaintiff.
Is there any measure of legal evidence presented in this case, upon which a court of justice can safely act, to prove that Eliza B. Blackwell executed, acknowledged and delivered to the plaintiff this deed of conveyance ? It appears that the property in question had previously belonged to the plaintiff; that on the 11th' of November, 1844, he conveyed it to Elias Gr. Drake; and that Drake conveyed it to Miss Blackwell, June 11, 1845, for the consideration of one dollar, with covenants against his own acts. But, in order to establish the probability of the conveyance from Miss Blackwell back to the plaintiff, and of which he now demands the redelivery, the plaintiff asserts that his conveyance to Drake, and Drake’s conveyance to Miss Blackwell were fictitious, merely for the purpose of protecting the plaintiff’s property from some possible impending legal assault.
■ It may be well, first to consider the evidence upon which this latter assertion is founded. Drake, to whom the plaintiff conveyed, testifies to the delivery of the conveyance to him, to his payment of $500 on account, before he got the deed, to the delivery of the deed at the office of Archibald Rogers, the plaintiff’s attorney, to the payment by him of the balance of the consideration money on the receipt of the instrument, in the presence of the plaintiff, and to his execution of a conveyance of the same property to Miss Blackwell, dated June 11, 1845, at the request of Mrs. Justina Livingston, the former wife of the defendant Alfred S. Livingston; for whom it is alleged by Livingston, it was purchased in trust by Drake. Drake testifies that it was given as the reason for his taking the title, that the plaintiff was in some legal difficulty; and from the great intimacy which existed between Dr. Moore and *557Livingston, it would look more like a real sale if he took the title. Livingston, he says, gave him the check for the $500, and that afterwards, (after the payment of this sum on account, and before the delivery of the deed,) Livingston gave him the balance of the money, in checks and bills; whose checks he could not tell. Livingston handed him money and checks; “ he could not tell how much in money; some of the checks he thought were Livingston’s; did not know whose checks the rest were; could not tell the number of the checks.” The amount paid by him, when he received the deed, was $10,150; which, with the $500 previously paid, made up the amount of the consideration money mentioned in the instrument. Drake further testified in answer to a question by defendants’ counsel, asking him to state all that Mr. Livingston had said, when he first introduced the subject of his (Drake's) taking the title, that Livingston told him he was about to sail for Eurojje; he afterwards changed to the West Indies; “ he said that some person had a property to sell, and he or some of his family, or his wife, or sister, wished to buy it; I don’t remember which; and on account of his great intimacy with the owner, and of the owner being in difficulties, he did not wish to take the title in his own name.” He further testified, that neither Moore nor Livingston, in any of the conversations, said any thing to the contrary of its being an absolute bona fide sale from Moore to the person for whom they were purchasing; that he had no knowledge or intimation that Moore was to have any interest in it after he conveyed to him; and that during all the time he was collecting rents, down to August, 1847, Moore never called on him to talk about the rent.
This is the only testimony in the whole case capable of throwing any light on the precise nature of the circumstances relative to the conveyance from Moore to Drake; and this testimony was introduced by the defendants. Strange to say, neither party called Bogers, Moore’s attorney, or Williams, from whom Livingston declared he had received a portion of *558the consideration money. But as Livingston, in his testimony in the court of sessions, which the judge at special term thought proper to admit, asserted that the transaction was bona fide, that his sister-in-law had bought it from Moore at his (Livingston’s) solicitation, and that he had obtained a part of the money with which to make the purchase from Mr. Williams, who was the agent of the Blackwell estate, and who had money in his hands belonging to that estate, it was assuredly very natural that the plaintiff should have procured his attendance as a witness; and as the burthen of proof rested on him, it is still stranger that he did not secure the testimony of his attorney, Mr. Rogers.
The only evidence in the case on this point, reaching beyond mere surmise or conjecture, having any tendency to corroborate the plaintiff’s allegation, is the state of Livingston’s account in the Mechanics’ Banking Association at the time of the purchase, and the payment of a check on the Bank of New York, dated 12th November, 1846, for $500, payable to Alfred S. Livingston or bearer, signed by the plaintiff. It undoubtedly appears from his account with the Mechanics’ Bank aforesaid, that Livingston had not money in that particular place, at the time, to pay for this property. But he did not, at any time, pretend to derive it from this source; it is disclosed that there were other sources, from which it is not at all improbable he might have obtained the money. His wife and his sister were each entitled to from $15,000 to $20,000 out of the Blackwell estate, and it would not be at all extraordinary if Mr. Williams, the agent of that estate, advanced to Mr, Livingston some portion at least of the amount necessary to effect what he might have represented as a good purchase, and which subsequent circumstances proved to be a correct representation; and the very fact that the purchase was made, at least apparently, for Miss Blackwell, seems still more not only to show that the money was obtained from the Blackwell estate, but that the transaction was not of the character alleged by the plaintiff. For, if the conveyance was made for this purpose, *559it would have sufficiently answered that purpose to have it conveyed in trust to Drake for Livingston himself, instead of his wife, or his sister-in-law ; indeed, considering the circumstances and the unbounded confidence which the plaintiff declares he placed in Livingston at the time, it would have been safer to have the conveyance made to him than to his sister-in-law, who was a lady of some fortune, young, and therefore not likely to have the same control over it as a man, who was his own master, and who, Dr. Moore thought, was his devoted friend.
There is no proof that the plaintiff exhibited any interest in this property, until his demand from Miss Blackwell for a reconveyance, -in 1851, except his alleged statement to his brother and others that he had received a deed from her in September, 1845. Drake collected the rents for Miss Blackwell; the lots were improved at a considerable expense by Livingston for her; they were twice mortgaged by Miss Blackwell, one mortgage being to secure $2000, the other $5000; one given in 1847, two years, the other in 1850, five years after the alleged reconveyance.
When we consider in addition to these circumstances, and the absolute failure of proof on the part of the plaintiff, in reference to the conveyance to Drake, his own sworn affidavit before the surrogate, and his admission to Brantingham, I can see nothing to justify the belief that the transaction was fictitious. In his examination before the surrogate on 29th Nov. 1844, he swears that he sold tins property to Elias Gr. Drake, on the 10th or 12th of that present month; that he had received $10,650 for it, and that there was no understanding between him and Mr. Drake as to the reconveyance of the premises; and to Brantingham he says, in February or March, 1849, that the sale was bona fide, and that Miss Blackwell was the bona fide owner of the property. It must be very strong and reliable evidence, indeed, that would warrant -the legal conclusion that he did not make a veritable sale to Drake, and that Miss Blackwell was not the real owner, in the face of *560these solemn and positive declarations. But the evidence is not strong or reliable; if there is any thing that deserves the name of evidence on that point, it is very weak and unreliable. No ground of probability is, therefore, left for the main allegation of the complaint, that Miss Blackwell did, on or about the 1st Sept. 1845, in consideration of the sum of $11,000, convey to the plaintiff one equal undivided moiety of the property in question; the proof of it must rest upon other circumstances, and other evidence, direct or indirect. This allegation is not, I maintain, as the case stands upon the point we have been considering, to have the benefit of any presumption; the allegation must be strictly and satisfactorily proved, according to the legal rules of evidence.
In addition to the plaintiff’s own evidence, which the defendant, now Mrs. Livingston, had no opportunity to refute by her own testimony, we have no evidence that amounts to any thing, not actually conjectural or very dim, except that of Charles Moore, the brother of the plaintiff.
Is his testimony of such force, and so satisfactory, as to justify the court to divest a person of real property of which she has been in possession for thirteen years; over which she has exercised independent acts of ownership during that period ; and of which the plaintiff himself, four years after the alleged execution of the conveyance from Miss Blackwell, declared that she was the dona fide owner ?
The chief importance of the testimony of this witness depends upon what he says in relation to the handwriting of Miss Blackwell; because if that handwriting is not sufficiently proved, the mere production by the plaintiff of an instrument, purporting to be signed by her, can be of no avail. If it can, no man’s estate is secure for a day. It is only necessary for any one, determined to get possession of it, to prepare a deed purporting to be executed by the owner, to show it, at a convenient season, to any friend, and then to allege its loss. Fortunately, the law, in cases of alleged loss, requires the greatest exactitude of proof.: It requires incontrovertible evi-. *561dence of the existence of the instrument; of its execution and delivery, hy the subscribing witness, and, if there is none, the most satisfactory proof of the genuineness of the grantor’s signature. This witness is sure he saw Miss Blackwell write twice; once when she was playing, with several others in the room, the game called consequences, in which “ ladies and gentlemen all unite, and pass the same sheet from one to another j they write a word, the name of a place or a person, and pass the paper round.” What the consequences are, the witness does not inform us; nor does he give its any explanation of the game. But he does not state that, on the occasion referred to, Miss Blackwell wrote her name; if she wrote any other name, or any other word, while engaged in an evening pastime, it Would be scarcely sufficient to afford the witness an adequate opportunity to become acquainted positively with her signature ; and it moreover appears, by the subsequent testimony of Mr. Bleecker, who was a member of the family at the time this game was performed at their house, that if a lady showed a gentleman what she wrote, it spoiled the game. On the only other occasion on which the witness states decidedly that he saw Miss Blackwell write, he says she wrote her name. She wrote her name two or three times; “ there was no special cause or occasion for it; she wrote with pen and ink on paper; it was left on the table.” He does not distinctly recollect seeing her write at any other time; though during his visits ■at this period he thinks he saw her write three times in all. How certainly, without imputing any improper or intentional bias to the witness, it seems very clear that it would be unsafe, in the highest sense of that word, to consider this sufficient proof of the execution of an instrument of the most solemn and of the highest nature, known, with the exception of a record, to our law. But when we find that these visits occurred in December, 1843, and January, 1844, and that the alleged deed must have been shown to him by the plaintiff some time after the 1st of September, 1845, the date of- its alleged execution, and that during this interval of nearly twq *562years, the witness never saw Miss Blackwell write, our confidence in the sufficiency of his testimony for so serious a purpose, can scarcely he expected. We cannot also overlook the fact, that three or four of the persons who were members of the family at the time these visits occurred, testify that “ they never knew the game played in the family, or by the defendant Eliza.” Mr. Dayton Hobart, before whom the plaintiff says Miss Blackwell acknowledged the execution of this deed, has no recollection whatever of it; ten or twelve years prior to the trial, he took her acknowledgment to some instrument, at her residence in Hudson street. He could recollect distinctly only one instance; although he was personally acquainted with her very well; he may have taken others; he had a sort of vague recollection of having taken her acknowledgment three or four times. The defendants produced a power of attorney from Miss Blackwell to S. C. Williams, witnessed by and acknowledged before him. He states his uniform practice is to subscribe his name as a witness, where there is no other name subscribed as such. The alleged deed had, it is admitted, no witness. This certainly does not supply any deficiencies in the testimony of Charles Moore, who, as I have said, is the only witness brought to substantiate this grave and important claim, whose evidence is worthy of any consideration. Can we sustain the judgment of the special term on such evidence as this ?
When, in addition to the intrinsic weakness of the plaintiff's proofs, we consider the circumstances accompanying the transactions connected with the disposition of this property, from the conveyance to Drake to the demand in 1851, we can no longer hesitate.
I have already referred to the plaintiff’s sworn examination before the surrogate, and to his declaration to Brantingham, four years after the alleged execution of the deed, that Miss Blackwell was the bona fide owner of the property. But there are other acts and declarations, on his part, equally significant. He swears in his complaint that the defendant *563Eliza B. Blackwell, (now Mrs. Livingston,) conveyed this property to him in consideration of the sum of $11,000; whereas the whole theory of his case rests on the assumption that she had held it in trust for him, and was, therefore, entitled to no price for it. In April, 1852, he commenced an action against Miss Blackwell for medical services, claiming on oath $3900; and, for a similar cause, an action against Mr. Livingston, the other defendant, for $14,760, likewise on oath.
It cannot fail to strike us as singular that the plaintiff never had this alleged deed recorded; for it is fairly to he presumed, if he sought and procured the reconveyance of this property in 1845, that the reasons which had induced him to make a fictitious disposal of it had ceased to exist; if they continued to exist, all his trouble, all the annoyances to which this proceeding exposed him, and the false, not to say dangerous, position in which it placed him, were all fruitless; and there is no suggestion whatever that he obtained this re-conveyance in consequence of any waning confidence in the fidelity of Miss Blackwell or Mr. Livingston. On the contrary, his intimacy was undiminished, and he left the whole control of the property in their hands. But one of the most unaccountable of the plaintiff's inconsistencies is, that, although he handed this reconveyance back to Livingston, in June, 1846, at the request of the latter, who merely said he wanted to look at it; and that he then permitted him to take it with him, under his promise to return it in a short time, he allowed Livingston to retain it, without making any demand for it, until October, 1851; and consented also, notwithstanding this palpable and suspicious violation of his promise, that he should continue the manager of this property, receiving all its rents, and in 1849 and 1850 laying out large sums in its improvement; in fact, erecting new buildings conjointly with the other owner, Mr. Bradford, on both lots. And all this time, during this heavy expenditure, the plaintiff was never known to exhibit the least interest in the *564concern. Mr. Bradford had nothing to do with him; he was not seen in the affair.
[New York General Term, November 4, 1858.Davies, Clerke and Sutherland, Justices.]
To say that the plaintiff, when he conveyed this property to Drake, never expected, at some future period, to receive it back, on repayment of the consideration money, or that the defendant Livingston never pledged himself to have it reconveyed, would he saying what may or not be true. The court has nothing to do with surmises or conjectures suggested by this “strange,” and to the principal parties to this controversy, “eventful history.” It is very manifest that there is most audacious and most dishonorable perfidy somewhere ; but our sphere of action, as a court of justice, is limited to proofs prescribed by law; we could not, even if we had just, moral reasons, which we have not, for fixing the guilt upon the unworthy party, express any opinion, or institute any action upon it.
■ All that we are bound to 'say is, that the plaintiff has not legally proved his case; that the decision of the special term is against the weight of evidence; and that, therefore, its judgment should be reversed, with costs, and a new trial be ordered.
Having passed upon the whole case, independently of the evidence excepted to by the defendant’s counsel, I have not thought it necessary to express any direct opinion upon the •rulings of the judge in relation to that portion of the evidence.