108 N.Y.S. 480 | N.Y. App. Div. | 1908
The plaintiff seeks an adjudication that an instrument, in terms a deed" of conveyance to the defendants’ testator,-executed by her in November, 1886, was in fact a mortgage, an. accounting to-asceitain the amount of her indebtedness and the amount received .by the defendants, they having sold tlie premises involved, and á decree requiring them to pay her tlie sum ascertained to be her due. (See Mooney v. Byrne, 163 N. Y. 86.) At the trial .the complaint was dismissed at tlie- close of her case, the record in that regard being as follows, viz.: “ [Defendants’ counsel] : I move for judgment, on the caseras made; I have some evidence I might give. The Court: Ther¿ is nothing here to justify judgment for the-plaintiff. [Defendants’ counsel]: I make the motion to dismiss. Court: Motion granted. [Plaintiff excepts.] ” I think the learned trial court intended to rule as matter of law that the plaintiff. had failed to prove her case, but a decision containing findings of fact was subsequently made ; hence I shall treat the decision as on the
The court made inter alia the following findings of fact, viz.: “ Third. As to the facts in the third article of said complaint stated, I find that the plaintiff did not on or about the 11th day of November, 1886, or at any .other time, borrow from James W. Elwell the sum of $1,500, to be thereafter repaid to him by the plaintiff, with interest. Fourth. I find that the plaintiff, her husband Alfred C. Conover, and Jacob P. Snyder did make the deed mentioned in the third article of the complaint, but that the same ivas not made for the better security of the payment of any amount to the said Ehvell. Fifth. As to the fourth article of the complaint, I find that it was not agreed betvreenthe parties to said deed at any time that the premises so conveyed should be held by the said EWell as security for the payment by plaintiff of the said amount; nor was it agreed that upon payment of said indebtedness said premises Avould be reconveved to plaintiff. But I find that at the time of the execution and delivery of said deed an agreement was made betiveén said Elwell and Alfred C. Conover, husband bf the plaintiff, that said Conover might repurchase the said premises in said deed mentioned at any time within three years on the payment of all indebtedness of said Alfred C. Conover to said Elwell, and the firm of which said Elwell was a member.” Said.findings were duly excepted to. I think the fourth finding is not only unsupported by evidence, but is opposed to the undisputed evidence both oral and documentary, and that it is • inconsistent with the fifth finding. An examination of the evidence becomes necessary.
Alfred Conover, the plaintiff’s husband, testified that he borrowed for'the plaintiff $1,500 of Mr. Ehvell, the defendants’ testator, and gave him said deed “ as security for that loan or any other debts that might accrue to Mrs. Conover’s shipping interests; ” that at the time of the delivery of said deed said Elwell executed a written agreement, which had been lost, but which provided that he might have the privilege of redeeming the land in three years by paying all the indebtedness to said Elwell,and his firm. It is unnecessary to analyze the testimony of this witness; it was not disputed but the court was not bound to believe it; the court could have found, as it evidently did, that the loan was to the witness, not • to
I need not discuss the proposition that a conveyance absolute in terms is a, mortgage if intended as security merely. There can be no doubt that an i/ndebtedness was created, hence the transaction was not a sale with an agreement for a resale. The Conovers were to have the privilege of' redeeming within three years by paying their indebtedness. Said Elwell may have thought that that privilege would be extinguished if not exercised'within the-period speci-' •fied, but it would not have been even if expressly so stipulated in the instrument itself, for the maxim “ Once a mortgage, always a . mortgage,” applies. (Mooney v. Byrne, supra; Hughes v. Harlam, 166 N. Y. 427, 429; Peugh v. Davis, 96 U. S. 332; Macauley v. Smith, 132 N. Y. 524.) I do not discuss the point argued at length by counsel whether the loan was to the plaintiff or her husband, for that is immaterial. (See Carr v. Carr, 52 N. Y. 251;
There is evidence from which the court might have found that the writing containing the defeasance clause was destroyed by the parties in consideration of the payment by said Elwell of a further sum of money. It does not appear that anything else was done to create an estoppel, and it seems that the mere payment of money, standing alone, is not sufficient. (Odell v. Montross, 68 N. Y. 499.) However this may be, the question is not presented by the record before us.
The judgment should be reversed on the law and the facts.
Woodward, Jenks and Rich, JJ.,concurred; IIirschberg, P. J., not voting.
Judgment reversed on the law and the facts, and new trial granted, costs to abide the final award of costs.