94 N.Y.S. 767 | N.Y. App. Div. | 1905
The action is one brought to foreclose a mortgage made by the defendant Emma A. Robinson, as trustee, to the plaintiff for §5,000, The defense is that there was never any valuable or other legal consideration for the execution or delivery of the bond and mortgage to the plaintiff; that the defendant in such execution and delivery acted as trustee under a certain instrument creating her the trustee for her children, Lucius Robinson and Emma D. Robinson; and that the plaintiff had knowledge of the terms and conditions of said instrument at the time of the execution and delivery of such bond and mortgage. The mortgage covers premises held by the defendant as trustee under such instrument, which authorizes her “ to sell, mortgage or lease said premises * * * for the use and, benefit of her said children.”
The condition of the bond was that the defendant should pay to
The contract mentioned in this condition was executed on the same day, or the day before the certifícate of deposit hereinafter mentioned was issued, which contract contains the following recital: “This is to certify that the First Rational Bank of Towanda, Pa., has received this day for deposit in its bank Five Thousand ($5,000) Dollars of Emma A. Robinson, as Trustee, to be held by the said Bank on.certificate of deposit, until the said Emma A. Robinson, as Trustee, shall execute and deliver to the said Bank a mortgage and bond for Five Thousand ($5,000) Dollars,” upon certain property therein described. Then followed the issue of said certificate of deposit. It was held, however, by the plaintiff until.the 4th day of August, 1903, upon which day one William Little, acting as attorney for'the plaintiff, delivered it to the defendant, and took from her a receipt therefor, reciting therein: “ A bond and mortgage being this day executed and delivered to said Bank by me upon consideration of said certificate of deposit, this certificate of deposit being the same as mentioned in the contract or memorandum of agreement made with R. R. Betts, Cashier, and myself as Trustee, and referred to in the mortgage herein.”
This reference to the mortgage apparently relates to a like clause therein as the one above mentioned as contained in the condition of the bond.
It appears, that on May 1, 1903, the defendant as such trustee executed a series of ten bonds of $2,500 each, and a mortgage for $25,000 to Rathaniel R. Betts, as trustee, to secure the payment of said bonds. This $25,000 mortgage covered the same property as the mortgage sought to be foreclosed in this action. Said Rathaniel R. Betts is the same person who was cashier of the plaintiff. One William Little was the attorney for the plaintiff and also represented Betts and the plaintiff in the transactions in question. The consid-'
The court on the trial dismissed the complaint, directed the cancellation of the $5,000 mortgage of record and directed the surrender thereof and of the bond accompanying it to the defendant. From this judgment the plaintiff has appealed.
The appellant insists that there has not been a sufficient pleading of the want of consideration, for the reason that the conclusion only is pleaded, and not the facts upon which it is based. The allegation of the answer is “ that there never was any valuable or other legal consideration for the execution or delivery by said defendant to said plaintiff of said bond and mortgage, or of either of them.’
It seems to me that the allegation “ that there never was any valuable or other legal consideration ” is equivalent to an allegation that there was no consideration, and that is the allegation of a fact and not of a conclusion. For that reason I think the pleading is sufficient.
The plaintiff also claims that the certificate of deposit for $5,000 and the moneys represented thereby did not belong to the defendant, and that the burden of proof was upon the defendant to show that this certificate and these moneys did belong to her. If the burden was on her she satisfied it. It appears to me clear that when she showed that the $5,000 which went into this certificate of deposit was a portion of the proceeds of the $25,000 mortgage given by her, and when she proved that the delivery of this certificate of deposit to her was the only consideration, for this $5,000 mortgage, she established that the money represented by the certificate belonged to her. If the plaintiff claimed otherwise, the onus was then cast upon it to rebut the defendant’s proof and show, if it could, that the defendant did not own this certificate or these moneys, if it relied upon those facts to establish the validity of its bond and mortgage. Without the establishment of those facts by the plaintiff in rebuttal of defendant’s proof she has made a complete defense to the foreclosure.
Under the proof as it stands it is clear that the $5,000 represented by the certificate belonged to the defendant, an,d that the bond and mortgage in suit were given simply to secure the delivery
As there is nothing in the evidence showing that the defendant did not own the moneys represented by the certificate of deposit, and as the bond and mortgage were given without consideration, the findings of fact appear to me to be fully justified by the evidence, and the conclusions of law the only ones that could be properly drawn therefrom.
The judgment should be affirmed, with costs.
All concurred; Smith, J., not voting.
Judgment affirmed, with costs.