Van Dusen v. Worrell , 4 Abb. Ct. App. 473 ( 1867 )

Hunt, J.

[After stating the facts]—But a single question is presented for our consideration, to wit, was it competent for the plaintiff to prove that the deed from Haskins to Worrell, although in form an absolute conveyance, was in fact, by the express agreement of the parties, a mortgage merely? This question was decided in favor of the respondent in Hodges v. Tennessee Marine Fire Ins. Co., 8 N. Y. 416, and was again decided by this court in the same manner, in June, 1866, not yet reported, in the case of Loveridge v. Oyer.

Judgment should be affirmed, with ten per cent, damages.

Parker, J.

The parol evidence admitted by the referee upon the trial, tending to show that the deed from Haskins to to the defendant was intended as a mortgage, was properly received. Hodges v. Tennessee Marine & Fire Ins. Co., 8 N. Y. 416; Sturtevant v. Sturtevant, 20 N. Y. 39.

The referee found the fact that it was intended as a mortgage, upon sufficient evidence. Hence his conclusion of law that the plaintiff was entitled to recover the money received by defendant upon a sale of the premises, after deducting the sums and interest which it was given to secure, and defendant’s reasonable charges for effecting the sale, was one of which the defendant has no right to complain.

The judgment appealed from should be affirmed, with costs.

All the judges concurred.

Judgment affirmed, with costs, and five per cent, damages.