4 Denio 493 | N.Y. Sup. Ct. | 1847
These two instruments must undoubtedly be read and construed together: but they do not make a mortgage. A mortgage is a conveyance of lands, upon a condition in the deed, or a defeasance out of it, that on the grantor’s paying a sum of money, or doing some other act, the conveyance shall be void; and performance of the condition, without any other act, puts an end to all title and interest in the grantee. Some modern cases have held, and such are cited at the bar, that although there be no condition or defeasance under which the deed may be avoided, but only a collateral agreement that the grantee will re-convey to the grantor on payment of the money, the transaction amounts to a mortgage. But this is not a case of that kind. There was no condition or agreement under, which the. title could ever become revested in the grantor. It was to remain in the grantee, or the person to whom he should convey in pursuance of the covenant. And besides, the conveyance to the plaintiff was not by way of security for the debt which the defendant owed the plaintiff; but in payment of the debt. No debt or duty of any kind remained upon the defendant. It was in any and all events a sale of the land. It was a sale for the consideration of $>1160,25, which the defendant then owed the plaintiff, and which debt was satisfied by the conveyance; and the further consideration of the covenants which the plaintiff made to pay off the judgment, and give the defendant any better price which could be obtained .for the land within a year; and if the land should not be sold within the year, then to pay the defendant such further sum for the land as might be determined by the award of arbitrators. It is impossible to hold that this is a mortgage, or any thing in the nature of a mortgage. I see no ground on which the decision in Palmer v. Gurnsey, (7 Wend. 248,) can be supported. But it is enough for the present to say, that the case is not precisely in point.
If this was not a mortgage, it was agreed by the counsel that the offer to prove usury in the consideration was properly rejected.
New trial denied.
