36 N.J. Eq. 485 | New York Court of Chancery | 1883
The principal object of this suit is to procure an adjudication that the defendant holds certain lands as mortgagee, and not as owner. The lands in controversy were originally held by the complainant and one Daniel Baker, as tenants in common, each
The averment of the bill that Baker executed the bond and mortgage for $800 to Shepherd, as surety for the complainant, is-not proved. The complainant, in his affidavit annexed to the bill, says that the loan for which the bond and mortgage were made, was made to him alone, and that Baker signed the bond simply as his surety, but in his evidence given on the hearing he said Baker got part of the money for which the bond and mortgage were given; .that Baker generally took what he wanted and he got the balance; that he supposes Baker got over $200 of this money, but he cannot say exactly how much. The two»
The important question, then, is, did the defendant have the knowledge charged against him by the complainant? The burden is on the complainant. He makes the charge and is bound to establish its truth. To test the truth of his charge, the complainant has appealed to the conscience of the defendant, and required him to answer under oath. And he has done so, denying explicitly and positively, that at any time previous to his
The complainant cannot succeed, then, unless the balance of proof on this pbint is in his favor. The testimony of but a single witness stands opposed to the truth of the defendant’s answer, and the natural effect of the story he tells is rather to excite distrust than to inspire belief. He says a few weeks before the defendant purchased, he notified the defendant, plainly and distinctly, that Baker’s title was a mere mortgage, and he further says, shortly after the defendant obtained title, they had another conversation, in which the defendant rather boastfully admitted that prior to getting title he knew all about the secret' arrangement between the complainant and Baker. There was nothing in the bargain to excite avarice, or to induce the defendant to run any hazard to get the lands. They were unimproved and unproductive, consisting of sand banks and sedge meadows;
It is a familiar rule that equity will give effect to a deed according to the intention of the parties, and accordingly, a deed absolute on its face may, where such was the intention of the parties, be declared to be a mortgage, but its character must be. determined by the mind of the parties at the time of its execution. If, at the time of its delivery, they intend that it shall have effect as an absolute conveyance, no subsequent change of intention can make it a mortgage. The deed from the complainant to Baker was drawn and partially executed in 1877. It was not fully executed until July 8th, 1879. It was not delivered until the latter date. Under what circumstances it was delivered, or what understanding was then had between the parties, the complainant has not informed us. Whether it was delivered as an absolute conveyance or as a mortgage, the complainant does not tell us. He must certainly know, and his failure to tell may justly be regarded as a very suspicious circumstance. His bill must be dismissed, with costs.