Statement of case.

department, made October 7, 1884, which affirmed a judgment. in favor of plaintiff, entered upon the report of a referee.

This action was brought to set aside two deeds, one from William P. Ballou to defendant Charlotte Ballou, dated June 7, 1851, and one purporting to be from William P. Ballou and plaintiff, his wife, to defendant Theodore P. Ballou.

The material facts are stated in the opinion.

E. D. Mathews for appellants Theodore P. and Charlotte L.. Ballou. A deed given in payment of an existing debt is given for a money consideration, and passes the title to the grantee,. although the debt was due to another. (1 Edm. Stat. 677, 51; 3 R. S. [7th ed.] 2181, § 51.) Plaintiff was not in position to deny the validity or effect of the deed. It recites a money consideration and its payment, and contains a general covenant of warranty. It estops the grantor and all persons claiming under him, by inheritance or otherwise, from denying a consideration sufficient to support the conveyance. (4 Kent [11th ed.] 539-545; 2 Wash. on Real Prop. 658, n. 4;. Grout v. Townsend, 2 Hill, 554, 557; Frink v. Green, 5 Barb. 457, 458; Rathbun v. Rathbun, 6 id. 99, 102; Goodspeed v. Butler, 46 Maine, 141.) Theodore was a competent witness. either in his own beh 'f or on behalf of his co-defendant as to any negotiation, ement or conversation between him and William, testified to by the plaintiff in her own behalf. (Code of Civ. Pro. § 829; Sweet v. Low, 28 Hun, 432, 433; Lewis v. Merritt, 98 N. Y. 206; Burrill's Law Dict., Title Representative; Markell v. Benson, 55 How. 360, 363.) The referee erred in receiving in evidence against both defendants the judgment-rolls in the former action. (6 Wait's Actions and Defenses, 793, 794.) It was the referee's duty to examine and pass upon each separate request, and to his refusal to do so exceptions were well taken. (Code of Civ. Pro. §§ 992, 993, 1023; Friedman v. Bierman, 43 Hun, 391; 6 N. Y. 407; Gardiner v. Schwab, 34 Hun, 582; Gormerly v. McGlynn, 84 N. Y. 284; Ward v. Craig, 87 id. 559; Goettling v.

Statement of case.

Biehler, 6 N. Y. Civ. Pro. Rep. 324.) The referee erred in admitting in evidence as against Charlotte Ballou the judgment-rolls in a former action brought by Harriet Ballou, the present plaintiff, as administratrix of her son Theodore against the defendant Theodore P. Ballou, to which action Charlotte Ballou was a total stranger. (1 Greenl. on Ev., § 523; Freeman on Judgments, § 173; Yorks v. Steele, 50 Barb. 397.) An action and judgment between two persons shall not bind or effect a third person who could not be admitted to make a defense, to examine witnesses or to appeal from the judgment. (Rathbone v. Hooney, 58 N. Y. 463, 467; Robinson's Case, 5 Co. 32, 36; Jacksm v. Mills, 13 J. R. 463; Sinclair v. Jackson, 8 Cow. 565; Jackson v. Hoffman, 9 id. 271; Denham v. McGuire, 101 N. Y. 161; Campbell v. Hall, 16 id. 575; 1 Smith's Lead. Cas. 800, n.; 7 Abb. N. Y. Dig. 1012; 39 Barb. 516; 42 id. 636; Jennings v. Jones, 2 Redf. 95; Mut. Ben. Life Ins. Co. v. Tisdale, 91 U. S. 244 [Bk. 23 L. ed. 317]; Humes v. Scruggs, 94 id. 25 [Bk. 24, L. ed. 52.]) The referee also erred in denying Charlotte's motion to dismiss the complaint as to her, on the ground that no relief for the cancellation of the deed to her, or its removal as a cloud upon title, could have been granted to William P. Ballou in his lifetime, nor can such relief be granted to the plaintiff in this action under the evidence given by the plaintiff, showing the deed was given with intent to hinder, delay and defraud the creditors of Theodore P. Ballou. (Union Nat. Bank of Albany v. Warner, 12 Hun, 308; Briggs v. Merrill, 58 Barb. 400; Wood v. Hunt, 38 id. 302, 309; Davis v. Leopold, 87 N. Y. 620; Stewart v. Ackley, 52 Barb. 283, 287; Sweet v. Tinslar, 52 id. 271; Nellis v. Clark, 4 Hill, 426; Bump on Fraudulent Conveyances, 440, 441; Coleman v. Burr, 93 N. Y. 17; Lore v. Dierkes, 16 Abb. N. C. 47, 54.) Treating the deed as a conveyance for the benefit of Theodore P., or as a security for his benefit, as is done by the referee, the delivery to the beneficiary was sufficient. (Everett v. Everett, 48 N. Y; 222; Verplanck v. Storry, 12 Johns. 551; Church v. Gilman, 15 Wend. 656, 662; Perry on

Statement of case.

Trusts, $$ 59, 259.) As the proofs do not sustain the allegations of the complaint as to the deed from William P. to Charlotte Ballou, the referee erred in not dismissing the complaint as against her. (Lange v. Benedict, 73 id. 12; Southwick v. First Nat. Bank, 84 id. 420; Ferguson v. Mass. Mut. Life Ins. Co., 22 Hun, 326; Bailey v. Rider, 10 N. Y. 363; Peck v. Mallams, 10 id. 548; Ferguson v. Ferguson, 2 id. 361; Frost v. Koon, 30 id. 446; Romeyn v. Sickels, 13 id. 864; Day v. New Lots, 107 id. 148; 11 id. 361; Southwick v. First Nat. Bank of Memphis, 61 How. Pr. 170.) The plaintiff was not a competent witness to prove the alleged agreement of 1842 between the brothers in relation to the Northrup farm, under section 829 of the Code of Civil Procedure, and her testimony on that subject should have been excluded. (Sweet v. Eddy, 28 Hun, 432; Steele v. Ward, 30 id. 556; Barton v. Scrambling, 31 id. 467; Price v. Price, 33 id. 67, 72; Holcombe v. Holcombe, 95 N. Y. 316, 320; Brague v. Lord, 67 id. 496; Wilson v. Reynolds, 31 Hun, 47; Witthaus v. Schack, 105 N. Y. 332; 7 N. Y. State Reporter, 345; Stuart v. Patterson, 37 Hun, 113; Boughton v. Bogardus, 35 id. 199; Price v. Price, 19 N. Y. Week. Dig. 331.) The evidence offered by defendants of the value of the two parcels of property was competent upon the question whether any such agreement of exchange was made as contended by the plaintiff and denied by the defendants. (Cornish v. Graff, 21 N. Y. Week. Dig. 383.) Section 829 does not exclude the testimony of a party interested in the event of an action, as to any transaction or communication between such person and a deceased person, concerning which a party situated as the plaintiff is, has been examined in her own behalf. (Sweet v. Low, 28 Hun, 432; Thaskell v. Benson, 55 How 361; Lewis v. Merritt, 98 N. Y. 466; Kelly v. Burroughs, 19 N. Y. Week. Dig. 478; Pinney v. Orth, 88 N. Y. 447; 32 Alb. Law Jour. 52.) The referee erred in excluding testimony of Theodore, offered in behalf of defendant Charlotte, the admission of which would tend to establish her claim to the

Statement of case.

land, not his; in the question before the court upon which this testimony was offered, and upon which only it would have had a bearing, Theodore having no interest to disqualify him as a witness. (Lewis v. Merritt, 98 N. Y. 206: Kelly v. Burroughs, 19 Week. Dig. 478; McKenna v. Bolger, 9 N. Y. State Rep. 64; 32 Alb. Law Jour. 52; Pinney v. Orth, 88 N. Y. 447; Wadsworth v. Hermans, 85 id. 639.) Where the conveyance comes from a third party, a trust for the benefit of one who has paid the purchase-money is not allowed to exist, if he has assented to the conveyance being made in that form. (Sturtevant v. Sturtevant, 20 N. Y. 40; Cook v. Barr, 44 id. 156; Hutchins v. Hutchins, 98 id. 56; Worrall v. Munn, 5 id. 229; Brown v. Cherry, 59 Barb. 628; Welton v. Devine, 20 Barb. 9.) The deed recites a money consideration and its payment, and contains a general warranty of title and possession, and estops the plaintiff from denying a consideration sufficient to support the conveyance. (4 Kent. [11th ed.] 539, 545, and notes; 2 Washb. on Real Prop., 156, 168, and note 4; Grout v. Townsend, 2 Hill, 554, 557; Frink v. Green, 5 Barb. 457, 458; Rathbun v. Rathbun, 6 id. 99, 102; Goodspeed v. Butler, 46 Me. 141.)

Edwin H. Risley for respondents. The original purchase of a portion of the premises in dispute by the three brothers, the deed being taken in the name of William P. Ballou, vested in him the legal title and gave to the other two brothers an equitable interest which was recognized by William P. in the execution of a memoranda agreement, created a trust in favor of Peter P. and Theodore P. Ballou, which might have been enforced. (Fairchilds v. Fairchilds, 64 N. Y. 471.) If the defendant, Theodore P. Ballou, considered himself aggrieved by the failure of the referee to pass on his requests, assuming that they were submitted before the case was decided, it was his duty to have procured an order of the court sending the case back to the referee for him to pass upon the requests. (Van Slycke v. Hyatt, 46 N. Y. 259; Lefler v. Field, 47 id. 407; Rogers v. Wheeler, 52 id. 262;

Opinion of the Court, per DANFORTH, J.

Meacham v. Burke, 54 id. 217; Smith v. Glens Falls Ins. Co., 62 id. 85; Potter v. Reynolds, 71 id. 74.) The referee has no power to pass on findings after the case had been decided and judgment entered. (Carroll v. Staten Island Co., 65 Barb. 32; 58 N. Y. 126; Code, § 1023.) The referee, on the objection made by Charlotte, excluded the evidence of Harriet Ballou with reference to what was said between her husband and Theodore P. on the execution of the deed, and the release of Theodore's interest in the property in question in 1842, but admitted it as against Theodore P.; subsequently he received the evidence and permitted it to stand against Charlotte. No error was committed in this ruling, as the evidence thus admitted shows that the plaintiff did not participate in the conversation which led to the execution of the agreement; this rendered it competent. (Corey v. White, 59 N. Y. 336; Ballou v. Ballou, 78 id. 325.) The judgment rendered in the action between the plaintiff, as administrator, etc., against Theodore P. Ballou, was properly admitted in evidence on the trial as against Theodore P. Ballou. (Stewart v. Montgomery, 23 Pa. St. 410; Van Slyke v. Newton, 10 Hun, 554; Goddard v. Benson, 15 Abb. 191.) The two deeds. being valid upon their face, their record in the clerk's office created a cloud upon the plaintiff's title. To vacate this apparent title extrinsic evidence was required, which rendered it a proper case for the action of the court to set the deeds aside and cancel them of record, thereby freeing the plaintiff's title from the apparent cloud. (Fonda v. Sage, 48 N.Y. 173.)

DANFORTH, J. So far as material to the question presented by this appeal, the record shows that William P. Ballou and Theodore P. Ballou were brothers; that on the 7th of June, 1851, William P. Ballou executed an instrument, which, on its face, purported to be an absolute deed to Charlotte Ballou, the wife of Theodore P. Ballou, conveying premises known, in part, as the Northrup farm, but also including by description other land. It expressed a consideration of $5,000, but was, in fact, executed upon an agreement between