Dobson v. Racey , 1 Seld. Notes 54 ( 1853 )

The widow of a deceased mortgagee in possession of the mortgaged premises, made a defendant with her children, the heirs of the deceased mortgagee, in a bill filed by the heir of the deceased mortgagor to redeem the mortgaged premises, having released her interest in the premises (pending the suit) to her children, was held á competent witness, prior to the adoption of the Code of Procedure, in behalf of .her children, to show that the mortgagor had released the equity of redemption to the mortgagee in his lifetime.

In relation to the rents and profits which she had received for a number of years, it was held, that her interest was balanced, as she was equally bound to account for them, whether the heirs of the mortgagor or of the mortgagee succeeded.

That her liability for costs was contingent, and therefore not such an interest as to render her an incompetent witness.

The testimony to establish the release of the equity of redemption was conflicting, and the conclusion depended chiefly on the relative weight which should be given to the statements of different witnesses. The referee having reported in favor of the release, and his report having been confirmed by the Supreme Court, this court refused to disturb such finding.

(See 3 Sandf. Ch. R. 60; 8 N. Y. 216, S. C.)