7 N.Y.S. 421 | N.Y. Sup. Ct. | 1889
The judgment is to be reviewed on this appeal the same as if the trial had been by the court without the intervention of a jury. Where feigned issues have been sent to a jury for trial, the court may adopt the verdict and find the facts in accordance therewith, or may disregard it and make its own findings, and when the case comes up on appeal it is to be reviewed on the findings and decision of the court as if there had been no submission of any question of fact to a jury. Colie v. Tifft, 47 N. Y. 119; Acker v. Leland, 109 N. Y. 5, 15 N. E. Rep. 743; Carroll v. Deimel, 95 N. Y. 252. The court may retry the same questions on the'evidenee taken on the trial before the jury, or proceed de nova, and require the parties to produce original proofs. At the special term the plaintiff submitted the case on the
It seems now to be well settled that if at the time the deed is delivered for the conveyance of land in fee, it is intended by the parties thereto as a security for a loan of money, or of a pre-existing debt, the fact may be proved by paroi evidence, although no fraud or mistake is alleged as a ground for relief. If the transaction was in substance a loan of money, upon the security of the premises, equity will look through the form of the conveyance and declare it to be a mortgage, that the intention of the parties may prevail. This doctrine is so uniformly declared by the courts that it is no longer open for discussion, at least in the courts of this state. The paroi evidence, however, upon which the grantor relies to establish that a deed executed by him, absolute in terms, was intended only as a mortgage, must have the force and conclusiveness not required on the trial of ordinary issues. The power of the court to reform such a deed on paroi proof, and declare it to have been executed simply as a security for the payment of a debt, is to be exercised with the greatest caution, and only when the alleged grounds of interference are fully made out so as to be clear from" doubt. Campbell v. Dearborn, 109 Mass. 130. As many of the cases state the rule, the evidence must be clear, explicit, unquestioned, and satisfactory. Erwin v. Curtis, 43 Hun, 292, and the cases there cited. We repeat the rule as stated by another tribunal, whose judgment commands the highest respect, (Howland v. Blake, 97 U. S. 626,) viz.: “In each case, the burden rests upon the moving party of overcoming the strong presumption arising from the terms of a written instrument. If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. * * * A deliberate deed or writing are of too much solemnity to be brushed away by loose and inconclusive evidence. ” We are all of the opinion that this presumption is not overcome by satisfactory and convincing evidence, and we fully concur with the trial court that the evidence is not of that strength and character which the law requires in this class of actions, and that it would be unsafe to rely upon such' proofs, and if the plaintiff’s demand should be granted, on the evidence produced by her in the case, titles to land, in this state, would be very insecure and uncertain. It is admitted by the defendant that the grantor, her son, was engaged in erecting works for manufacturing purposes, and on the 22d day of March, 1884, she loaned him the sum of $5,000 to aid him in that enterprise. The deed in question was executed and acknowledged on the 12th day of April the same year. The defendant claims that this deed was executed in satisfaction of that debt. It does not appear that the grantor (the borrower) ever delivered to the grantee any written evidence that he was indebted to her for the money loaned, or that she ever made any claim against the borrower or his estate, on account of such loan. The trial court also found that the defendant paid a fair market price for the premises, and this conclusion is well supported by the evidence. In a case-where there is no considerable difference between the market price of the premises conveyed and the sum which it is claimed that the deed is intended to secure, it is a significant circumstance as indicating that the intention of the parties is manifested by the
It is proper, in this connection, to consider another of the plaintiff’s exceptions. The defendant’s evidence, just referred to, was received over the plain
The defendant called and examined as a witness Mr. Gorham, who was the general counsel for the grantor, and it is claimed that he was permitted to testify to a confidential communication made to him relative to the object and purpose of executing the deed, in violation of the provisions of section 835 of the Code of Civil Procedure. The substance of the statement made by the grantor to Mr. Gorham, as testified to by him, was that he had had a great deal of money from his mother, and that he had agreed to give her a conveyance of the property, and requested him to prepare the deed. The point of the objection is that this was proving the grantor’s statement that lie was to give her ■a deed absolute in terms, which tended to support the defendant’s contention. We need not, in view of the plaintiff’s position as stated in her complaint, pass upon the question whether this was a privileged communication or not, for it is her position that the deed was to be absolute in terms, but by an arrangement between themselves it should operate only as a mortgage. The •plaintiff does not claim that there was any fraud or mistake in executing the deed in the form in which it was delivered, and relies wholly upon the contemporaneous paroi agreement, that in its operation it should be regarded as a security only.
Code Civil Proc. N. Y. § 829, provides that a party interested man action shall not be examined as a witness in his own behalf against a person deriving his interest or title from a deceased person concerning a transaction or communication between the witness and the deceased person, except where the person so deriving interest or title is examined on" his own behalf.