#### *Gilbert *vs.*The North American Fire Insurance Company.

In an action on a *policy of insurance against fire,*the plaintiff'on the trial must show that he had *an insurable interest*in the premises; but it is not necessary in the account of loss furnished as part of the preliminary proofs to state the nature of his interest.

*43A deed does not take effect as an operative instrument, although left in the hands of the grantee after its execution by the grantor, if it bo so left solely *for thepurpose of transmission*to a third person, in whose hands the parties had agreed it should remain until the happening of a certain event, when it should be delivered over and take effect.

The fact that a deed is *recorded,*is onlypma *facie*evidence of a delivery, and consequently may be rebutted.

This action was tried at the Oswego circuit, in December, 1838, before the Hon. Phido Gridley, one of the circuit judges.

The defendants, on the 7th December, 1836, entered into a policy of insurance against fire, to the amount of $4000, upon a stone flouring mill, and a framed ware-house attached thereto, belonging to the plaintiff, situate at Oswego, for one year from the date of the policy. The mill took fire on the 23d October, 1837, and was injured to a great amount. The first objection taken to a recovery was, an alleged, defect in the preliminary proofs ; the defendants insisting that the plaintiff should have stated his *interest*in the premises at the time of the insurance, and at the time of the loss. The account, or rather affidavits, of the loss made by the plaintiff, commenced as follows : “ H. S. G. deposes that *the flouring mill ivhieh belonged to him,*in the village of Oswego, and which was insured by, &c. was, on, &e. totally destroyed by fire,” &c. This objection was overruled by the circuit judge. The defendants next undertook to show that the plaintiff had, without their assent, parted with his interest in the premises injured; and they accordingly produced in evidence a deed in fee, bearing date 19th May, 1837, whereby the plaintiff for the consideration of $16,000, conveyed the property to one *Jeremiah Nottingham.*The grantee, in that deed being called by the plaintiff, testified *that he entered into a contract with [ *44 ] the plaintiff for the purchase of the premises: that it was agreed that the plaintiff should execute a deed to him, and that he (the witness) should execute a mortgage back to secure the payment of $11,000, and as to the residue of the purchase money, viz. : $5000, that it should remain open until the close of a controversy between the plaintiff and one *White,*the grantor of the plaintiff, in respect to encumbrances charged upon the property; that the deed and mortgage should be placed in the hands of Mr. Babcock, of Oswego, to be retained by him until the settlement of the controversy between the plaintiff and White, and *then to be delivered over and take effect.*The deed and mortgage were accordingly executed, and *were both left in the hands of the witness to forward, to Mr. Babcock.*He subsequently explained that the understanding was, that the deed should be transmitted to the clerk’s office of Oswego, to be recorded, and then handed over to Mr. Babcock, to remain until, &c. He accordingly sent the deed to the clerk’s office, and the mortgage to Mr. Babcock, in whose hands both the deed and mortgage now remain; the witness testifying that he had never accepted or received the deed. The deed and mortgage were *recorded*on *44the same day. The defendants also gave in evidence a deed of assignment, bearing date 5th July, 1837, executed by the plaintiff to one *William P. Nottingham,*in trust, for the payment of certain debts, whereby the plaintiff granted *all his real estate,*a schedule whereof was declared to be annexed. On production of the schedule it was manifest that the property at *Oswego*was not embraced in the assignment. Upon this evidence the counsel for the defendants moved for a nonsuit, which being refused, an exception was taken, and the jury, under the charge of the judge, found a verdict for the plaintiff. The defendants ask for a new trial.

*W. C. Noyes,*for the defendants.

*W. Duer & B. Davis Noxon,*for the plaintiff.

Bronson, J.

[ *45 ] **By the Court,*It was necessary for the plaintiff to establish on the trial his interest in the subject insured ; but I find nothing in the ninth condition annexed to the policy, which made it necessary for lffui to stafe the nature of his interest in the affidavit, which formed a part of the preliminary proofs. He was to deliver a particular account of his loss, and accompany the same with his oath. He stated in his affidavit, that the flouring mill which belonged to him, and which was insured, was, on a specified day, totally destroyed by fire, and that his loss and damage by reason of the fire, would exceed ten thousand dollars. This seems to be a full and fair compliance with that part of the ninth condition which relates to this question, and I think no criticism upon the words of the affidavit would have been attempted, had it not been for the question which arose concerning the conveyance of the property before the loss happened. That question remains to be considered by'itself. The objection to the preliminary proofs was properly overruled.

II. There is no foundation for the objection, that the plaintiff’s interest in the mill passed by the trust deed to William P. Nottingham. The general words, “ all my real estate,” were plainly qualified and restricted in their operation, by the reference which immediately followed to “ a schedule,” in which two parcels of land were particularly described, and the Oswego property was not mentioned. It would be doing violence to the plain intent of the parties, to say that the mill passed by that deed.

III. The deed of May 19, 1837, to Jeremiah Nottingham, presents a more important, though not a very difficult question. If the grantor do not intend that his deed shall take effect until some condition is performed, or the happening of some future event, he should either keep it himself, or leave it with some third person as an *escrow,*to be delivered at the proper time. If he deliver it &s his deed to the grantee, it will operate immediate*45ly, and without any reference to the performance of the condition, although such a result may be contrary to the express stipulation of the parties at the time of the delivery. This is one of the cases in *which [ *46 ] the law fails to give effect to the honest intention of the parties, for the reason that they have not adopted the proper legal means of accomplishing their object.

But this case does not come within the rule. There was no delivery of the deed, either upon condition or otherwise, to the grantee. The agreement of the parties was, in substance, that the deed should be placed in the hands of Mr. Babcock, until the controversy with White should be settled, and then, and not before, the conveyances should be delivered. It was not necessary that the word *escroio*should be used in making this arrangement. The intention of the parties was sufficiently manifested without it. *Clark*v. *Gifford,*10 *Wendell,*810. If Babcock had been present, and the conveyances had been handed to him at that time, there would have been no question about it. And although absent, if the deed had been sent to him, with the proper instructions, by the hand of a *third person,*it could not be maintained that this would amount to a delivery to the grantee.

Now, what was done in this case ? The deed, as well as the mortgage, was left in the hands of Nottingham *to be forwarded to Babcock,*the depositary. It was not put into the hands of the grantee to keep, *but merely as a mode of transmission to Babcock,*as was well said by the judge on the trial. There was neither any formal delivery, nor any intent that the grantee should take it as the deed of the grantor. Nottingham received it, not as *grantee,*but as the *agent*of the grantor for a special purpose ; and I see no good reason why he could not execute that trust as well as a stranger. He did execute it with fidelity, and the deed still remains with the depositary agreed on by the parties.

The fact that the deed had been recorded, was only *prima facie*evidence of a delivery, which might be rebutted. *Jackson*v. *Perkins,*2 Wendell, 308. What would have been the consequence had Nottingham conveyed to a *bona fide*purchaser, need not be considered on this occasion.

New trial denied.