113 N.Y.S. 991 | N.Y. App. Div. | 1908
We cannot reverse the court upon the facts unless the proof so clearly preponderated to an adverse conclusion that it could be said with reasonable certainty that the court erred in its conclusions. (Stokes v. Stokes, 155 N. Y. 581; Foster v. Bookwalter, 152 id. 166; Lowery v. Erskine, 113 id. 52.) This we cannot say. In Wilson v. Parshall (129 N. Y. 225) the court, per Earl, J., say : “ The security of titles and sound public policy require that a party alleging that a deed absolute in form is, nevertheless, a mortgage,
It was essential for the plaintiffs to establish the debt, else the conveyance could not be a mortgage. (Pom. Eq. Juris. [3d ed.] § 1196, and cases cited; Saxton v. Hitchcock, 47 Barb. 225, and cases cited; Kraemer v. Adelsberger, 122 N. Y. 476.) To this end the plaintiffs contended that at the time of the conveyance there was a loan of $400 made by the grantee to the grantor, and that a note was given for that money. And although there was evidence that at some time, possibly in 1890, four years before the conveyance, the grantee had lent $400 to the grantor, the testimony which would connect that loan with the conveyance is vague, indefinite and unsatisfactory, is given by interested witnesses who were shaken by their cross examination, and of whom one admitted that he had testified falsely as to one fact. There is no proof that the grantor was impecunious so as to be forced to raise so small a loan in such a way, and it does appear that she left a considerable estate.
The judgment is affirmed, with costs.
Woodward, Gaynor, Rich and Miller, JJ., concurred.
Judgment affirmed, with costs.