#### William *W.*Warren v. Benjamin F. Tobey.

*jEjectment: Heir at law: Administrator: Undivided interest*An heir at law may recover in ejectment his undivided interest in the lands of which his ancestor died seized, ”as against the administrator of the estate of such ancestor, in the absence of any showing of authority from the pro-hate court to take possession of the realty belonging to the estate.

*Deeds: Destruction: Title.*The destruction by the grantor, without the assent of the grantee, of a deed after its delivery, can have no effect to reinvest the grantor with any right which may have passed by it.

*Deed: Consideration: Administrator of grantor's estate: Creditors.*A deed from father to son, which expresses a valuable consideration, is valid» though no actual consideration passed, as between the son and the administrator of the father’s estate, where the latter makes no showing of any rights claimed by creditors of the estate.

*Submitted on briefs April 22.*

*Decided April 27.*

Error to Shiawassee Circuit.

*Spaulding*& *Cranson,*for plaintiff in error.

*Hugh McCurdy,*for defendant in error.

Pee CueiaM:

Warren brought ejectment against Tobey for a piece of land in Shiawassee county.

The canse was tried by tbe court without a jury. The facts were found as follows: • The premises were conveyed on the 18tb of January, 1855, by Sbepard Knapp and wife to Horton Warren, tbe father of tbe plaintiff, and the deed was recorded in August, 1858. Horton Warren wont into jiossession and continued to occupy tbe premises until bis. death, wbieb occurred in 18 TO or 1871.

In February, 1862, be executed a deed of the premises to tbe plaintiff. There wras no actual consideration, though one of six hundred dollars or eight hundred dollars was expressed.

This deed was delivered to the plaintiff, and without getting the same recorded lie banded it to bis sister to keej> for *46liim. At tbe time when tbe deed was made some talk occurred between tbe plaintiff and bis father, that tbe latter might occupy .and use tbe place during bis natural life, but no agreement was made. In July, 1862, or some five months later, tbe father asked tbe daughter to allow him to see tbe deed, and she thereupon banded it to him, and be put it in. the stove and burnt it.

In 1870 or 1871 the father died intestate, leaving tbe plaintiff and several other children as bis heirs, and when, this suit was commenced, March 12, 1874, the defendant was in possession of the premises, and claimed to be in as administrator of the father’s estate.

There was no evidence that the defendant was administrator, or had ever been authorized by the probate court to take possession of the realty belonging to the estate, and no title or claim of title was set up by defendant.

Upon these facts the court gave judgment for defendant.

The judgment was clearly wrong:

*First,*The facts found established a plain legal title in the plaintiff as heir at law to an undivided interest which was recoverable in the action independently of any right based upon the deed of 1862, and the defendant wholly failed to make out any fact to support his possession or justify him in resisting the plaintiff’s claim;

*Second,*The deed of 1862 having been delivered, its subsequent destruction, as it seems to have occurred, could have no effect to re-in vest the, plaintiff’s father with any right which may have passed by it, and upon its face it was sufficient to pass the legal title, and the right of possession appears unquestionable as against airy one claiming under his grantor.

Whether' there were any circumstances which creditors might set up to avoid the grant, or circumstances which ■other parties so situated as to assail it might urge against it, we do not know. But as against the present defendant, who does not appear to have uny title or right of possession, or to be in a position to question the legal sufficiency of the *47grant, and wlio fails to establish any fact going to impair it, the right and title of the plaintiff under the deed are sufficient to entitle him to recover.

The judgment must therefore be reversed, with the costs of both courts, and judgment be entered here for the plaint tiff, and the cause be remanded to the court below, that the defendant mav take a hew trial under the statute if desired.