Van Buren v. Olmstead, 5 Paige Ch. 1

Van Buren v. Olmstead

5 Paige Ch. 1 | New York Court of Chancery | 1834

The Chancellor.

It is now well settled, that paroi evidence is admissible to show that a deed, absolute in its terms, was intended by the parties as a mortgage, or security for the payment of money merely. And in this case, although the uncorroborated evidence of Fross, impeached as it is, would not be sufficient, of itself, to sustain the complainant’s allegation that this deed was only intended by the parties to operate as a mortgage, it is shown, from Olmstead’s own admissions to Hoffman and Vanderpoel, that it was taken merely as a security for the amovint paid to Vanderpoel, and for other *11sums which were then justly due from Fross to Olmstead. If the testimony of Fross is to be credited entirely, the deed was only intended to secure the amount paid to Vanderpoel; leaving Olmstead without any security for the seventy dollars due to him on. the notes, which Fross admits he then held against him. In the first place, it is highly improbable that Olmstead would receive the deed as a security merely for the money advanced for Fross on the mortgage, when there was a still further sum previously due to himself, It is inconsistent, also, with the declarations of Olmstead to Vanderpoel and to Hoffman that it was taken to secure a previous indebtedness, as well as the amount which was due on Vanderpoej’s judgment and decree. And in the letter of Olmstead, of the 9th of April, 1823, inquiring of Vanderpoel as to the amount due on the mortgage and the terms of payment which will be required, he says he shall be under the necessity of raising that mortgage to secure a demand due to himself I think there is a sufficient allegation in the bill ■that the deed was given with a view to defraud the complainant. And if that fact had been established by the proofs, the ■deed would be set aside as fraudulent, absolutely and unconditionally ; leaving the representatives of Olmstead to their lien upon the land by virtue of the assignment from Vanderpoel. But even Fross does not venture to swear that he and Olmstead had any such fraudulent object in view when the deed was given, although be leaves it to be inferred from other facts which are stated in his deposition. If the parties to the deed intended to commit such a frond, Olmstead must have been a very stupid rogue to make the statement which he did to Judge Vanderpoel and to Hoffman a few days after the giving of this deed. On the whole, I am not satisfied, from this evidence, that any fraud was intended on the part of Olmstead; but have arrived at the conclusion that the deed was taken by him in good faith, to secure the repayment of the sum advanced on the mortgage, and the balance previously due to himself, which balance he told Judge Vanderpoel was less than $100. I must therefore declare and decree that this deed, though absolute on its face, is only valid as a mortgage for the security of the sum of $587,74, paid to *12Vanderpoel, with interest from the time of such payment, on the 25th of April, 1823, and'such sum as was justly due from Fross to Olmstead at the date of the deed, with interest thereon. That the complainant is entitled to redeem, upon payment of the said two sums, with interest, after deducting therefrom the rents and profits received by the defendants, or any of them, subsequent to the time that Fross occupied the farm'. That it be referred to a master residing™ the county of Columbia to take and state an account of what is due, upon the principles above stated. That the master charge, as an offset against the amount due to the defendants for principal and interest on the said security by way of mortgage, the amount of rents and profits of the premises since 1826, and including the amount received from the tenant for that year. That in estimating the rents and profits, if the premises have not been rented out at a fair cash rent, the master charge a fair cash rent therefor such as might have been received, with reasonable care and prudence, over and above the taxes-and repairs, as, from the present situation of the premises, such repairs shall appear to have been made. The master is also to allow interest as-shall be just. And upon the coming in and confirmation-of the master’s report, the complainant is to pay to the personal representatives of Olmstead the amount reported due, with interest from the date of the report, within three months after the confirmation of the report. Upon the payment thereof, the complainant is to be let into possession of the premises; and the widow, and the heirs at law who are adults, must execute to the complainant a release of all their interest in the premises, with covenants against their own acts, upon the request and at the expense of the complainant. And the infant defendants, respectively, as they arrive at age, are to execute similar releases.

The situation in which this property was left at the death of Olmstead rendered it impossible for the personal represntatives to give to the complainant his equitable rights, without the aid of this court; as the legal title to the land was prima facie in the infant heirs. The offer to pay, under such circumstances, was not sufficient to deprive the defendants of *13interest on their debt, to be off-set against the rents and profits with which they are chargeable. Neither do I think they should, under the circumstances of (his case, be charged with the complainant’s costs. The general rulo is, that a complainant seeking to redeem does not recover costs, but pays costs to the other party, although he obtains a decree in his favor allowing him to redeem-. But, in this case, the complainant. has done every thing he could to save the expense of this litigation ; the whole of which has probably been produced by the irregular and improper mode adopted by the decedent, in taking an absolute deed for the security of his debt, instead of adopting the ordinary mode of security, which upon its face would have showed the transaction as it really was. I do not think it would be just and equitable to charge the creditor coming to redeem with the costs of this defence. The complainant must, therefore, bear his own costs; and the costs of the defendants must be paid by the personal representatives, out of the fund to be received by them under this decree.