Strong v. Stewart

4 Johns. Ch. 167 | New York Court of Chancery | 1819

The Chancellor.

On the strength of the authorities, and on the proof of the loan, and of the fraud, on the part of the defendant, in attempting to convert a mortgage into an absolute sale, I shall decree an existing right in the plaintiffs to redeem. The Cases of Cotterell v. Purchase, (Cases temp. Talbot, 61.) Maxwell v. Mountacute, (Prec. in Chancery, 526.) Washburn v. Merrills, (1 Day’s Cases in Error, 139.) and the acknowledged doctrine, in 2 Atk. 99. 258. 3 Atk. 389; and 1 Powell on Mortg. 104. (4th London edit.) are sufficient to show, that parol evidence is admissible in such cases, to prove that a mortgage was intended, and not an absolute sale, and that the party had fraudulently perverted the loan into a sale. In this case, the admissions in the answer were sufficient to presume a mortgage, against the absolute terms of the assignment.

Decree accordingly.