#### William R. Carnes, substituted in place of Martha B. Carnes, deceased, plaintiff and appellant, *vs.*George W. Platt and John L. Griffin, defendants and respondents.

1. It is the duty of counsel to call the attention of a judge at the time, to any erroneous assumption by him in his charge to the jury, of the existence of a material fact, concerning which, there is either contradictory evidence, or none at all, in order to have it corrected. Such an assumption, however, must be expressed, and not merely inferential, in order to make it erroneous.

2. Counsel cannot take advantage on appeal, of an omission by the judge, on the trial of an action, to submit to the jury questions of fact which should be submitted to them. A judgment will not be reversed merely because questions of fact ought to be submitted to the jury, unless such submission be specially requested by the party desiring it.

*2718. But if the judge incorrectly charges the law to the jury, and such error injuriously affects one of the parties, who excepts thereto, he need not, in order to place himself in position to correct that error, request the judge to charge correct propositions, which are the converse of those charged, nor request him to submit any matters of fact to the jury.

4. Where the judge made an erroneous charge to the jury, (although he also charged, that in a certain other event the defendants would be entitled to a verdict, which latter charge standing by itself was correct, yet it being impossible to determine that the verdict was not rendered exclusively upon such erroneous charge, if the plaintiff was injuriously affected by it, he is entitled to a new trial, unless there were some other circumstances in the case to prevent it.

6. As the question of delivery, in respect to a deed, involves acceptance, it is always one of intention, depending on the circumstances of the transaction.

6. Although the mere placing of a deed in the hands of the grantee, or an agent of his, authorized by him to receive it, is presumptive evidence of an intent to deliver it so as to take effect immediately, as the deed of the grantor, yet this presumption may be rebutted by attendant circumstances.

7. Where the same attorney is employed by a grantee to examine the title, and by the grantor to draw a deed, of real estate, the mere placing in his hands by the grantor-, of the deed executed and acknowledged, the consideration whereof has not been paid or delivered, is not, in law, a delivery to the attorney for the use of the grantee, with intent to pass the title; hut at most constitutes the attorney the agent of the grantor to make a delivery upon payment of the consideration, which is the condition upon which the delivery is to be made,

8. The grantor may, when he hands the deed to the attorney, either qualify that act by stating that he merely deposits it for safe keeping, until he shall deliver it personally; or may make it a present delivery of the deed for the use of the grantee, with intent to pass the title to the latter before receiving the consideration, hut in the latter case he must so expressly declare and instruct the attorney.

9. Where the evidence showed no express instructions or declarations to the attorney by the grantor, and only the placing of the deed in his hands by the latter; Held, there was no delivery of the deed with intent to pass the title to the grantee.

10. There being no evidence to show, that the agent had authority from the grantee to receive the deed for him as his agent, and he was not furnished with the consideration to be paid on delivery ; no such authority could he implied from his mere retainer as counsel to examine the title.

11. There having been no delivery of the deed, in such case, by the mere leaving the same with the attorney, there was no acceptance; for like reasons a subsequent delivery and acceptance could not relate back to the time when the deed was so left with the attorney, so as to cut off intervening rights.

12. Where an agreement was made between a debtor and creditor, by which the latter agreed to release certain property of the former, which had been attached in another state, on condition that the debtor should convey to him other property in this state; which agreement was subesquently abandoned *272by both parties, and the deed contemplated by it was never delivered nor accepted; *Held,*that persons in the occupation of the premises so agreed to he conveyed by the debtor, not in possession under the said agreement, or under a title derived through a deed delivered pursuant to it, could not protect their possession by it.

13. Where a person, in taking an assignment of a judgment, acts for the judgment debtor, and takes the assignment for his use, he has a right to hold it as a valid security, for the money he advances on its purchase, and, in case of non-payment of that money by the debtor, to enforce the judgment against ■ any property on which it is a lien.

14. On an issue rendering the question, whether a judgment was purchased by a witness for his own benefit, or that of the judgment debtor, material, the witness may be asked “ Por whom did you purchase that judgment! ” Also, “ In your negotiation with the bank, (the judgment creditor,) for whom were you acting 1 ”

(Before Monell, Garvin and Jones, JJ.)

Heard May —, 1868;

decided May 30, 1868.

Action of ejectment, to recover the possession of certain premises situate in the city of New York.

The complaint alleged the plaintiff to be the owner in fee and entitled to the possession of the premises; that the defendant Platt unjustly claimed to have the title to, and to be the owner of them; and that the defendant Griffin was in possession as tenant under said Platt; that before the commencement, of this action, while Platt claimed to be the owner, and Griffin was in possession, the plaintiff demanded possession of the premises from them, and they unlawfully and without the consent of the plaintiff, withheld from him the possession thereof, to his damage $5000; and prayed that the defendants might be adjudged to surrender possession and pay the aforesaid damages for detention.

The defendant Platt by his answer denied all the allegations of the complaint, and for a distinct defense, alleged that in July, (26th,) 1854, one Charles W. Houghton was seised .in fee simple of the premises, and he, with ' his wife, on that day, conveyed the same to one Charles L. Anthony by a full covenant warranty deed, and Anthony, in September, (4th,) 1854, conveyed .the same by a quitclaim deed to Elijah and Edwin Houghton, who, in October, *273(17th,) 1860, mortgaged the same to him, (the defendant Platt,) to secure $12,000; that he commenced an action to foreclose the mortgage, and such proceedings were therein had that, in January, 1863, a judgment of foreclosure and sale was had; that the premises were sold under such judgment, to him, (the defendant Platt,) and a deed therefor executed and delivered to him, and that he entered into possession about May, 1863, under that deed. That in August, (10th,) 1854, the Merchants’ Bank of Boston, recovered a judgment (for $7190.37) in the Supreme Court of the state of New York, against Houghton, which was docketed in the clerk’s office of the city and county of New York, before the recording of the deed made by Houghton to-Anthony in the register’s office, which judgment Houghton was in equity, as between himself and Anthony and his grantees, bound to pay. That Houghton, in April, (26th,) 1862, conspired with Martha Carnes, (the original plaintiff in this action,) to defraud the defendant. In pursuance of which scheme, Houghton procured the plaintiff to obtain an assignment of said judgment and hold the same under a secret trust for himself, and to issue an execution on said judgment to the sheriff of New York, under which execution, the sheriff, in June, (18th,) 1862, sold all the interest of Houghton in said premises which he had at the time of the recovery of such judgment, or at any time thereafter, to the plaintiff, and at the expiration of fifteen months after the sale the sheriff executed a deed of the premises to the plaintiff, which was recorded in the register’s office of the city and county of New York, in September, (19th,) 1863. That such judgment, assignment, execution, sale and deed constituted the only claim or title of the plaintiff; that Houghton was the real assignee of such judgment, and the plaintiff held the sheriff’s deed for his benefit, and that this action was commenced and prosecuted for the immediate benefit of Houghton.

The plaintiff) in a reply to this answer, admitted that *274Houghton was, in July, (24th,) 1854, seised in fee simple of the premises, and alleged that he continued to be so seised until after August, (10th,) 1854. The reply admitted the recovery of the judgment by the Merchants’ Bank, alleging the same to have been docketed in August, (10th,) 1854; also that that bank, in April, (26th,) 1862, assigned said judgment to the plaintiff, for a good and valuable consideration; also that the plaintiff, in May, (6th,) 1862, issued an execution to the sheriff of the city and county of New York, setting forth the contents of the execution ;, also that in January, (18th,) 1862, the sheriff, at the proper place and time, after due notice, sold under that execution, to the plaintiff, all the estate and interest which said judgment debtor had at the time of the recovery of such judgment, or at any time afterwards, in the premises. It alleged the making out by the sheriff of the two certificates in manner and form as required by statute, and the delivery of one of them to the plaintiff) and the filing of the other in the office of the clerk of the city and county of New York. It admitted that, in September, (19th,) 1863, after the expiration of fifteen months from the time of sale, the sheriff by a proper deed conveyed the premises to the plaintiff, in fee simple. It denied that Houghton and wife in J uly, (26th,) 1854, by deed or otherwise, conveyed the premises to Anthony, and alleged that the deed mentioned in the answer, by which it is there claimed that the premises were aliened by Houghton to Anthony, was not delivered to Anthony, or any one on his behalf, until September, (14th,) 1854, and was given without any consideration whatever; and that the deed mentioned in said answer, by which, it is there claimed that the premises were conveyed by Anthony to Elijah and Edwin Houghton was not given on the 4th of September, 1854, but was dated on the 13th, and was not executed or delivered until the 15th of that month, and was given without any consideration whatever. It also alleged that the *275mortgage, alleged, in the answer to have been given by Edwin and Elijah Houghton, was not given as security for S 12,000, or any sum whatever, then loaned, or advanced by the defendant Platt to the Houghtons, or to any one in their behalf, but as collateral security for. some antecedent debt or indebtedness past due and owing from them to him. It takes issue on the allegations in the answer of combination, conspiracy,- fraud, secret trust, and procurement of Houghton; of the plaintiff’s holding the assignment of the bank judgment, or the sheriff’s deed, under' secret or other trust for- Houghton, or for his use or benefit, or pursuant to some scheme or otherwise; of the issuing of the execution, and the other proceedings had by the plaintiff, mentioned in the answer, by the procurement of Houghton, or in pursuance of some conspiracy, or with the design mentioned in the answer, or with any design, intent, or understanding whatever between the plaintiff and Houghton and also of the latter’s being the real assignee in interest of said judgment,.or having an interest therein, and of the commencement and prosecution of the action for the benefit of Houghton.

On the trial, the following facts appeared : One Charles L. Anthony, having a claim against Houghton, (Charles W.) obtained an attachment against property of his in Rhode Island. Some time in July, 1854, Houghton being then seised in fee of the premises in question, made an agreement with Anthony, (whether in writing or not did not appear,) whereby the latter agreed to accept the property and release his attachment, if this property was all free, clear and satisfactory. Anthony then employed Messrs. Wetmore & Bowne, as his counsel, to examine the title. After they had examined the title and found it satisfactory, Houghton requested them to draw the deed. They did so, and gave it to him to procure its execution. This deed was dated July 10, 1854, and acknowledged July 26. It was handed to Mr. Wetmore, and remained in his possession, *276never having been put on record, until some time in September. Anthony being absent when the deed was left with Mr. Wetmore, and not returning until September, and Houghton being still seised in fee of the premises, a judgment was recovered against him by the Merchants’ Bank of Boston for $7190, docketed in the county clerk’s office on the same day.

When Anthony returned in September, Wetmore carried down the search and found this judgment. Thereupon Anthony, under the advice of Wetmore, refused to release his attachment and accept the deed, or carry out the arrangement made between him and Houghton. He proceeded upon his attachment, not releasing it, and in the latter part of September, (about the 13th,) 1854, at the request of Houghton, that he should convey the property to some one, he executed a qyát-claim, *subject to all*liens, to Elijah and Edwin Houghton, his brothers, without receiving any consideration therefor.

On the 17th of October, I860, Elijah and Edwin mortgaged the premises to the defendant Platt to secure, as appeared on its face, $12,000. This mortgage Platt foreclosed, and on the foreclosure sale became the purchaser of the premises, and received a deed therefor, under which he entered into possession about May 18,1863.

On the 26th of April, 1862, the Merchants’ Bank assigned its judgment to Mrs. (Martha B.) Carnes, (the original plaintiff herein,) receiving from her between $400 and $500. An execution was duly issued to the sheriff of the county of Hew York, who, on the 18th of June, 1862, duly sold thereon to Mrs. Carnes, (for $11,194,) all the interest which Houghton had in the premises on the 10th of August, 1854, or at any time afterwards. After the sale, the sheriff made, filed and delivered the certificate of sale, as required by law, and subsequently, at the proper time, (September 19, 1863,) executed and delivered .to Mrs. Carnes the usual sheriff’s.deed, pursuant to such sale.

The following questions arose on the trial:

*2771. Was the deposit of the deed with Wetmore a delivery thereof hy Houghton, as his deed, to Wetmore for the use of Anthony, with intent to pass the title to Anthony ?

2. Was such deed then and there accepted hy Wetmore, he being authorized by Anthony to accept it for him ?

3. Was there such an acceptance of such deed by Anthony, in September, as to relate back to the day of the leaving the deed with Wetmore, so as to cut off intervening rights ?

4. Could the defendants protect in this action their possession, (under the circumstances developed in the evidence,) by the agreement between Anthony and Houghton, (C. W.)

5. Was the assignment of the bank judgment made to Mrs. Carnes for the benefit of and in trust for Houghton ? and were all proceedings had thereafter had in pursuance of such trust, and for the benefit of the latter ? and was this action commenced, and is it prosecuted, for the immediate benefit of Houghton ?

The evidence bearing on the first four questions, (beyond such as goes only to prove those facts before stated to have been established,) was, in substance, as follows:

Mr. Anthony said at first: “I requested Wetmore to examine the title,” and afterwards, “I employed Wetmore & Bowne to conduct the business on my side. I expected them to attend to the whole of it. I presume I acquainted them with the nature of the transaction I entered into with Houghton, because they gave me the value of the property.”

Mr. Wetmore said: “I was counsel for Anthony to examine the title, and see that he got a good title. I acted for Anthony in searching the title. I was employed by Anthony to investigate this title; that is all. * * I did not put Houghton’s deed to Anthony on record. I could not cancel the attachment, or do any thing. I could not close the matter until after Anthony’s return. * * * If Anthony had come in for the deed, and had executed the necessary papers, I should have handed it to him. I have no recollection of any instructions, now.”

*278Anthony never paid any consideration or parted with any property or security for these premises; Edwin and Elijah Houghton never in any shape paid or agreed to pay to Anthony any consideration for the property, nor paid nor parted with any thing to any one, or agreed so to do with any one.

There was no evidence, except the face of the mortgage, that Platt advanced any thing on its faith and credit.

On the fifth question, the evidence consisted, on behalf of the defense, of the testimony of Fuller (the cashier) and Haven (the president) of the bank that, held the judgment, and on behalf of the plaintiff, in rebuttal of the testimony, of William R. Carnes, the husband of the former plaintiff. The testimony of the former two, repeated statements made by Carnes to them while negotiating the purchase of the judgment. It was in substance, that Carnes represented himself to be a friend of Houghton; that he wanted to do him a service; that the judgment was of no value; and urged the bank to release Houghton, as he was insolvent, of feeble health, and unable to do any thing while this judgment was hanging over him; poor, with nothing in the world, and that he (Carnes) wanted to do him a friendly service, and would like to have the judgment given up; that he (Carnes) for the sake of befriending Houghton, would be willing to pay some small trifle for the judgment, although he did not think it would be worth any thing.

William R. Carnes, on-being called by the plaintiff in rebuttal, testified that the negotiation for the judgment occupied nearly three years; that he never stated to the officers of the bank that he was purchasing for Houghton, whom he had known for twenty-four years and frequently saw while the negotiation was going on for the judgment, once in Boston, but he didn’t know whether he came there about the judgment; that he did not think that Houghton then, or previously, consulted with him about obtaining a satisfaction of the judgment; he did not consult with him with reference to obtaining an assignment; he was a creditor of Houghton, at the time he bought the judgment.; the *279testimony of the president and cashier was substantially correct; that Houghton was in court. Being asked on his direct examination, “ Eor whom did you purchase that judgment ?” also, “In your negotiation with the bank, for whom were you acting?” also, “How did you ascertain that the judgment was a lien on real estate?” All these questions were severally objécted to by the defendant, the objection sustained, and exceptions taken to their exclusion.

Charles W. Houghton, although present in court, was not called as a witness by either side.

The judge charged the jury that they should find for the defendant if they found either that the above mentioned agreement to take the property in question and release the Rhode Island property was made between Anthony and Charles W. Houghton, or that the purchase of the judgment in Boston was really made for the benefit of Houghton. To each of which instructions the plaintiff separately excepted.

The plaintiff’s counsel made several requests to the judge to charge the jury, all of which were refused and exceptions taken. Among such requests was one, “that the delivery, in September, of the deed, by Houghton to Anthony, could not relate back to the time it was left with Wetmore, because a deed cannot relate back so as to defeat the intervening rights of third parties.”

The jury rendered a verdict for the defendant; from a judgment on which the present appeal was taken.

*E.*Walden, for the appellant, plaintiff.

*I. C. Carter,*for the respondent, defendant.

By the Court, Jones, J.

The charge to the jury to find for the defendant if they found that there was an agreement made between Anthony and Houghton,-(C. W.) whereby this property was to be convéyed to Anthony and he was to release the Rhode Island premises, was clearly erroneous. It is charging as matter of law that the mere making *280of the agreement in question transferred the legal title title to Anthony. Ho case that I have met with goes to this extent. The respondent does not claim such to he the law; but he says, that the judge, in making this charge is to be regarded as having assumed the facts that, in the event of the agreement having been made, the deed was either delivered to and accepted by Anthony prior to the recovery of the judgment, or that it was delivered before and accepted after, and that as matter of law, the acceptance related back to the delivery.

There is, however, nothing in his charge to indicate any such assumptions. On the contrary, it indicates on its face that in his view the case did not turn on the question of delivery and acceptance of the deed, but entirely on the bare question as to whether the agreement was made or not; he holding if it was made, that the title was out of the judgment debtor at the time of the recovery of the judgment; otherwise, if it was not made.

I fully concede the rule that if the judge in his charge assumes a fact to be proven, concerning which there is contradictory proof, or no proof at all, it is incumbent on counsel to call his attention to the matter, at the time, and this so that if it be a mere error the judge may correct it; but the assumption must be expressed in language. It would be pushing the rule too far, to suppose that counsel can look into the brain of the judge and ascertain what mental assumptions he has made, in order to arrive at a supposed conclusion.

I also fully concede the rule that if the judge omits to submit to the jury, questions of fact which should be submitted to them, counsel cannot on appeal take advantage of such omission and claim that the judgment should be reversed, because the question of fact ought to have been submitted to the jury, unless they specially requested such submission. But if the judge incorrectly charges the law to the jury, and such error may have injuriously affected the party and he has excepted thereto, he need *281not, in order to place himself in position to correct that error, request the judge to charge 'correct propositions which are antagonistic to his charge, nor request him to submit matters of fact to the jury.

• Such is the position of. the present plaintiff. The judge charged the jury, as matter of law, that if a certain agreement was made, the defendants were entitled to a verdict. This was clearly erroneous. Although he also charged them, that in a certain other event, the defendants would also be entitled to a verdict, and this latter charge may perhaps be correct, yet as it is impossible to say but that the verdict was rendered solely upon the erroneous charge, the plaintiff was injuriously affected by it, and is consequently entitled to a new trial, *(Sayre*v. *Townsend,*15 *Wend.*647,) unless upon the undisputed facts either both the first and second, or both the first and third, or the fourth alone, of the questions mentioned in the statement of the case, or arising on the trial, can be answered affirmatively.

First, then, does the evidence establish that the handing of the deed to Wetmore operated as a delivery thereof as his deed by Houghton, for the use of Anthony, with intent to pass the title to Anthony ?

Under the evidence in this case, there was no such delivery until at least sometime in September, 1854. The question of delivery, involving acceptance, is always one of intention, depending on the circumstances of the transaction. *(Brackett*v. *Barney,*28 *N. Y. Rep. at p.*340.) It is true that the mere handing of a deed to the grantee or his agent authorized to receive it, is presumptive evidence of an intent to deliver it, so as to take effect *instanter*as the deed of the grantor; but this presumption may be overcome by attendant circumstances.

In this case, assuming that Wetmore was authorized to receive the deed for Anthony, yet all the attendant circumstances are repugnant to the presumption of an intent on the part of Charles W. Houghton to deliver it to the grantee as his deed. Wetmore was the attorney of Anthony to *282examine the title, and was employed by Houghton to draw the deed. He was thus cognizant of the ternas on which the deed was to be delivered and accepted, and must be regarded as acting for both parties in the matter. This is evident from his testimony, and is by no means an unusual thing. If Anthony had furnished him with the consideration, there can be no doubt, that he would have considered himself authorized and would in fact have had authority (there being no proof to limit the effect of entrusting him with the papers which were to be mutually delivered) to close the transaction. But in doing so, he would be acting as the agent of Houghton in delivering the deed and receiving the consideration, and as the agent of Anthony in receiving the deed and paying the consideration. Thus until he did some unequivocal act showing, that he had delivered and received as the act of the one, and received and paid as the act of the other, he must be regarded as holding the deed as the agent of the one, and the consideration as the agent of the other. As in this case Wetmore did no such unequivocal act, until somewhere about September 13, 1854, (if he did any then, since it is not clear but that he returned the deed to the grantor,) he must be regarded (even if he had authority from Anthony to receive the deed as his agent as holding the deed, up to that time, as the agent of Houghton, for him and his use, and not as agent for Anthony, or for him or his use. There is nothing in the evidence showing that Wetmore had authority to receive the deed for Anthony as his agent. Bo express authority was given him; he was not furnished with the consideration to be paid on delivery; and no such authority can be implied from his mere retainer to examine the title.

As the grantor had' employed the attorney to draw the deed, and as when he handed it to the attorney properly signed and acknowledged, he did not receive the consideration, the only possible inference from his act of handing to, and leaving the deed with, the attorney under these eircum*283stances, in the absence of any evidence of instructions given at the time, is that he left the deed with the attorney as his agent to deliver on payment of the consideration.

The acts of the grantor (Houghton) and the attorney (Wetmore) show, that such was the intent of the grantor in this case, and that it was never contemplated, that the leaving the deed with Wetmore was a delivery thereof, for the use of, and with the intent to pass the title to, the grantee, or that Wetmore was authorized to accept the deed, as agent for the grantee, or that he did, in fact, accept it for him as his agent. Wetmore says he could not close the transaction, and did not record the deed, because Anthony was out of town, and the consideration had not been placed in his possession, while he says if the consideration had been placed in his hands, he would have deemed himself at liberty to close without Anthony’s presence. This is equivalent to saying that, in his view, he held the deed, as the agent of the grantor, only to be delivered in the event of the grantee’s performing, as a condition of delivery, his -part of the agreement. Therefore we find that Wetmore did not, in his capacity as agent of Anthony, record the deed. It is suggested that the neglect to record arose from oversight or .negligence; but his evidence refutes this. He says, in effect, that Anthony being absent, and not having left with him the consideration, he could not close the matter and record the deed. Why ? Evidently because, not having the consideration in his hands, he could not fulfill his obligation to Houghton, to receive the consideration before delivering the deed. If he had been acting solely as agent for Anthony, and in no respect for Houghton, and assuming the deed to he left with him with intent to deliver it to Anthony, so as to pass the title, there would have been no necessity for waiting until Anthony’s return.

So, too, the acts of Houghton himself show that the leaving of the deed with Wetmore was not intended as a delivery to Anthony with intent to pass title to him. *284When Anthony refused to accept the deed, and carry out the arrangement, and proceeded with his attachment on the Rhode Island property, we do not find Houghton claiming that he had performed his part of the agreement, and transferred the title to the Hew York property, and insisting that Anthony should perform his; but he conceded the validity of the objection arising out of the recovery of the judgment, and induced Anthony to take the deed, without paying any consideration therefor, as a mere conduit to pass the title to his (Houghton’s) brothers, without any consideration paid to Anthony.

It may be laid down as a sound proposition, that where a grantee employs an attorney to examine the title, and the grantor employs the same attorney to draw the deed, the mere handing by the grantor of the deed, executed and acknowledged, to the attorney, the consideration not having been paid, cannot be regarded as a delivery to the attorney for the use of the grantee with intent to pass the title, but, at most, it only constitutes the attorney the agent of the grantor to make a delivery upon payment of the consideration, as a condition for the delivery. True, the attorney may violate his duty to the grantor, and deliver the deed to the grantee, without insisting on the performance of the condition; and such delivery *may, perhaps,*from the time it is actually made, take effect against the grantor; but the law will indulge in no fiction to create a delivery contrary to the duty of the attorney, but, on the contrary, will require it to be evidenced by some unequivocal act. The grantor may, however, when he hands the deed to the attorney, either qualify that act by informing the attorney that he only deposits it for safe keeping until he, the grantor, delivers it personally; or may make it a present delivery of the deed for the use of the grantee with intent to pass the title to the grantee, before receiving the consideration, by so expressly declaring to and instructing the attorney.

In the present case, the evidence shows no express instructions or declarations to the attorney. It only shows *285a bare handing of the deed to the attorney. Under the proposition above laid down, the evidence clearly shows no delivery of the deed until some time after the docketing of the judgment in question.

.There not having been any delivery prior to September, of course there could be no acceptance prior to that time, and for the same reason the delivery and acceptance in September, could not relate back to the time when the deed was left with Wetmore.

The first three questions, then, must be answered in the negative. How stands it in regard to the fourth ?

I do not deem it necessary to enter into an inquiry as to what would be the relative rights of the plaintiff and defendants, if the defendants were in possession under the agreement between Houghton and Anthony, or wider a title derived through a deed delivered pursuant to that agreement, because, under the evidence, they are not in possession under either that agreement'or such title. The agreement was abandoned by both of the parties to it, and the deed from Houghton to Anthony was clearly never delivered, nor accepted, pursuant to that agreement,» but was used as a mere conduit to pass the title from the judgment debtor to his brothers, for his benefit, with the design ■to avoid, if possible, the effect of the judgment.

There never was the slightest act done, under this agreement, that would justify a court in giving any one an equitable lien upon it. Indeed, as the evidence does not. show that the defendants ever knew of the agreement, or acted on the faith of it, it is difficult' to perceive how they can claim, that by reason of the fact of its having once existed, they have a superior equity over the plaintiff. They certainly have no such equity, on the ground of having acted on it, nor can they claim that such an equity has passed to them from either Anthony or the brothers of the judgment debtor, for they manifestly had no equitable rights to pass.

*286The error of the judge in charging the jury the first proposition in his charge is therefore not cured, and for that error the judgment must be reversed.

Nor is the second poposition charged, accurate. Admitting that Carnes acted for Houghton, and took the assignment for his use, still he had a right to hold it as a valid security for the money which he advanced, on its purchase, and in case of non-payment of that money by Houghton, to enforce the judgment against any property on which it was a lien. *(Harbeck*v. *Vanderbilt,*20 *N. Y. Rep.*395.) In this aspect Houghton, and perhaps the defendants through him, may have a claim for the proceeds of the sale on the execution, over and above the sum necessary to reimburse Carnes, or may perhaps have a claim in equity to have the land reconveyed upon making such reimbursement. If he has either of these claims, he cannot urge them as the case stands. The first would clearly be no defense to this action to recover possession, and the second can only be enforced in equity, or perhaps in this action by setting forth the facts in the answer and claiming the equitable relief sought.

In concluding, as the point may possibly arise on the new trial, it will be well to pass on the exception taken to the decision sustaining the objections to the three questions referred to in the statement of the ease. The first two questions are clearly admissible, under the case of *Sweet*v. *Tuttle,*(14 *N. Y. Rep.*465.) The evidence proposed to be elicited by the third question was immaterial. The manner in which the witness became possessed of the knowL edge that the judgment was a lien on real estate would throw no light on the question as to who he was acting for in procuring the assignment. Perhaps if followed up by questions founded on what the counsel supposed would be the answer to this one, its materiality might have appeared. As it was not so followed up, we must assume that counsel proposed to drop the subject on receiving an answer to the question; since the answer to this question, whatever it *287may have been, would not have assisted the jury in arriving at a conclusion on the question presented for their determination. The question was properly overruled, as calling for immaterial testimony.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.