(dissenting). The action was commenced to recover the amount of the loss sustained by the plaintiffs by the destruction of a barn by fire, insured by 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 of May, 1 goo. The barn was destroyed by fire on the 19th day of March, 1901. 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 bam was situated, in which deed his son, Abraham Rosenstein, was named as grantee. The consideration expressed in the deed was $3,000. The deed was procured to be executed by Solomon Rosenstein through his son, and 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 it was recorded it has-been in his possession. The learned trial court found that the deed 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 nq other purpose. The court also found that, notwithstanding the execution 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.
It seems to me that the decision in Forward v. Insurance Co., 142 N. Y. 382, 37 N. E. 615, 25 L. R. A. 637, 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 e-xe*742outed 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. No 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 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 deceive 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 i'n 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 Rdsenstein, the grantor-.named therein, and was 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. Insurance Co., 110 N. Y. 1, 17 N. E. 405, 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 nominal1 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 a security for any debt.. It was a mere 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 *743creditors, and, 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 same 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, and delivery of the deed was not in fact made with intent that it should convey title or interest.
In the case of Ten Eyck v. Whitbeck, 156 N. Y. 341, 50 N. E. 963, 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; Same v. Leek, 12 Wend. 105; Brackett v. Barney, 28 N. Y. 383, 340; McIlhargy v. Chambers, 117 N. Y. 532, 23 N. E. 561; Younge v. Guilbeau, 3 Wall. 641, 18 L. Ed. 262.”
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 plaintiffs are 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.
SPRING, J., concurs.