The plaintiff is one of the grantees in a deed ; the defendant and several other parties are also grantees. The defendant has the custody of the deed, and has had it' since its date, more than ten years prior to the commencement of the action. One of the two grantors is dead. The judgment is “that the defendant give possession of said deed to the county clerk of Saratoga county to the intent that the same shall be duly placed on record in said clerk’s office in behalf of and for the benefit of the plaintiff,” also for costs. Before the action was commenced the plaintiff made request of the defendant that he either cause the deed to be recorded or allow plaintiff possession of it for that purpose. This the defendant refused to do. The defendant, by his answer, alleged that the deed was not satisfactory to himself and some of the other grantees; that he never accepted it from the grantors as a satisfactory deed, but only conditionally and for examination.
The purchase-money was $2,000, of 'this, $1,500 are shown to
Stating the case more favorably for the defendant' than the referee has found it to be, the defendant has held for ten years without having it recorded, a deed of real estate in which the plaintiff and defendant and others are the grantees. The plaintiff is content with the deed and wishes to have it recorded, to the end that he may have the protection the record affords. The defendant, and possibly the other grantees, are not content with the deed and do not wish to have it recorded. No valid reason is shown why the plaintiff should not have the protection he seeks.' The defendant may expose himself and the other grantees to whatever risks may result from withholding the deed from record, but he has no right to impose the like risks upon the plaintiff without his consent. The law accords to the plaintiff the right to have his muniments of title recorded, and does not accord to his co-tenant or co-grantee the privilege to withhold from him that right. One co-tenant may not compel the other to deliver to him the common grant of title (Clowes v. Hawley, 12 Johns., 484), but it is manifest one should not so use it as to deprive the other of any right under it.
The record in behalf of the plaintiff will not, unless they so elect, affect the other 'parties. The defendant objects that the plaintiff did not, at the time of the demand, tender to him the amount of the charges for recording or for any other expense. The defendant is not obliged to pay the fees for recording and it does not appear that any other expense will be incurred.
"We conclude to affirm the judgment. We have some doubt whether costs ought to have been awarded in the court below, especially if the defense to so novel an action was interposed in good faith. We exercise our discretion by withholding costs of the appeal.
Judgment affirmed, without costs.