The first ground on which the motion for a nonsuit was made, was that the *615deed for the house and lot had never been delivered to the plaintiff. The jury must have found the facts to be as testified to by the plaintiff, and her version of the transaction in reference to the deed is, that without any request from her to the defendant, or any intimation from him to her of his intention to give her a deed of the house and lot, he purchased the premises, and directed the deed to be made to her, and it was so made, and delivered to him by the grantor. Subsequently he informed her of what had been done. She said “well” and then requested him to put it on record, and he agreed to do it.
It cannot be questioned but that the defendant intended the title should pass from the grantor, and it could not pass to the grantee, unless there was a delivery of the deed. The delivery to him was for the plaintiff, and such a delivery vested the title in the plaintiff. (Ernst v. Reed, 49 Barb. 367. Brown v. Austin, 35 id. 341. Roosevelt v. Carow, 6 id. 190.) Had the defendant himself been the grantor, there would have been a sufficient delivery of the deed.
The conveyance to the plaintiff was by way of advancement. She paid nothing for it, and nothing was demanded from her for it. In such a case, the title passes although the deed may be retained by the grantor, unless the existence of an intention that it should not pass until an actual delivery was clearly established.
In Souverbye v. Arden, (1 John. Ch. 240,) the chancellor states the result of his examination of the cases as follows : A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof that he never parted, nor intended to part, with the possession of the deed; and even if he retains it, the weight of authority is decidedly in favor of its validity, unless there be other circumstances besides the mere fact of his retaining it, to show that it was not intended to be absolute.
*616The second ground of the motion for a nonsuit was that there was no proof of breach of the contract on the part of the defendant, and that no security had been demanded by the plaintiff. The jury having found that the title to the house and lot passed to the plaintiff, she thereby became the owner, and the defendant had the benefit of the value of it in his purchase of the farm. There is no evidence that she intended to give it .to the defendant, or that he understood it was given to him.
There can be no doubt but that the defendant became indebted to the plaintiff for the value of the house and lot. It is said that there was no demand of security, and hence there was no breach of the contract. She did demand security before she signed the deed to Hosier, and that was all the demand that was necessary. But no demand was necessary. The defendant became, instantly upon the execution of the deed by the plaintiff, the debtor to her to the extent of the value of the house and lot, and it was his duty to pay it on the spot, as no credit was given or contemplated, unless security was given.
Upon the proof in the case we must assume that the defendant intended to make an advancement to the plaintiff, his daughter, procured the deed of the house and lot to be made to her, and that after delivery to him, he held it for her benefit. And that being desirous to pay in part for the farm he purchased of Hosier, he induced the plaintiff to convey to Hosier the house and lot in payment of the sum of $2,000. She accordingly conveyed, but insisted that she should be secured for the sum of $2,000, and the defendant promised to make it right.
These facts establish a cause of action in favor of the plaintiff for $2,000, and interest from the date of her conveyance to Hosier. The motion for a nonsuit was therefore properly denied.
*617One Eldridge was called, and testified that he was an assessor of the town of Spring-port, in 1867, and called on the defendant for the purpose of assessing his property. The defendant said the house and lot were Ms daughter’s. TMs evidence was objected to by the defendant’s counsel as immaterial and incompetent, but the objection was overruled and the defendant’s counsel excepted.
The ground on wMch the counsel deems the evidence incompetent is, that it is proving title to land by oral admission. It is quite obvious that such was not the object of the evidence. It was received by the court as bearing on the question of the delivery of the deed, and for this purpose it was competent. If the deed had been delivered, there was no dispute as to the title that was conveyed by the deed, and oral evidence of the conveyance was then wholly unnecessary and wholly immaterial.
The defendant testified that he told Shank, the grantor of the house and lot, at the time of its execution, that if he gave the plaintiff the deed he was to have a life lease. The defendant’s counsel then offered to prove that the purpose of the defendant in taking the deed in the name of the plaintiff, was to keep it in his own possession, with a view to delivering it to her in case they effected a subsequent arrangement by wMch he was to have certain rights in consideration of the deed. TMs evidence was objected to by the plaintiff’s counsel and rejected, and the defendant’s counsel excepted. The offer was, in substance, to prove the undisclosed purposes of the defendant—the operations of his own mind. Such evidence is never admissible to affect the rights of third persons, unless where a party’s intention becomes a subject of legitimate inquiry. The evidence was properly rejected.
. The defendant’s counsel excepted to that part of the charge in which the court instructed the jury that if any *618agreement was proven by which the plaintiff parted with her title to the house and lot, the law would raise the presumption that the father was to pay for the property. The charge of the court was, that if the jury should not find that there was an agreement between the plaintiff and her father, that she should ultimately have a share of the farm, then they must revert to the presumption that there was an implied contract on the part of the father to pay the plaintiff all he received for the house and lot. The court told the jury, in substance, that in the absence of any agreement as to the mode of payment to the plaintiff, for her interest in the house and lot, the law would imply an agreement on the part of the defendant to pay her what he got for it. I doubt whether this instruction was strictly correct. The agreement which the law would imply would be to pay her what the house and lot were reasonably worth. But as there is no evidence that it was worth any less than he got, I do not discover that the defendant, could be prejudiced by the charge.
There was a request to charge that in case the jury sholud find that the title to house and lot vested in the plaintiff, the law requires that she should pay him for the money paid by him. The plaintiff claimed title to the land, not by purchase, but by gift from her father. In such a case, there is no ground for claiming that she should pay for the land. The request was properly rejected. • ■ .
It is said that upon the whole charge the verdict should be set aside, although there are no exceptions to it in the case.
It has been held that when it is manifest that the jury have been misled by the court, and by reason thereof a verdict has been rendered which would not have been rendered but for the erroneous charge, the court will set it aside and grant a new trial, although no exception was taken to it.
*619[Fourth Department, General Term, at Buffalo, June 3, 1873.Mullin, Talcott and E. E. Smith, Justices.]
Upon the two questions submitted to the jury by the court, there is no error in the charge which would justify us in setting aside the verdict. It may be that remarks were made by the court in its charge that,' standing alone, could not be approved, but the general bearing and scope of the charge is right; and the erroneous remarks, if any, did not do any injury to the defendant.
The judgment and order must be affirmed.