Erwin v. Curtis , 6 N.Y. St. Rep. 116 ( 1887 )

Angle, J.:

The controlling questions in this case arise under the issue, taken by the defendant to the allegations in the complaint: that while the Hermanee foreclosure was pending, the plaintiff, in order to prevent a sale thereunder and a probable sacrifice of the property, applied to defendant for a loan of money sufficient to pay the mortgage and costs ; that defendant refused to loan plaintiff, or assist him otherwise than by procuring an assignment of the Hermanee bond and mortgage, and on condition that plaintiff should execute to defendant a quitclaim deed of the mortgaged premises for the expressed consideration of $1,500, to consist of the amount of said'bond and mortgage, interest and costs, and such further sum as should amount to $1,500, and thereupon said defendant procured said bond and mortgage, to be assigned to him by said Hermanee, on payment by him to her of $1,000 and interest and costs, and plaintiff executed and delivered to defendant said quit-claim deed, under an agreement between them that upon payment of said bond and mortgage, interest, costs and advances, defendant would reconvey said premises, discharged of said mortgage, or that said quit-claim deed should be held for the purpose of furnishing defendant a home on said premises during his life, and that of his wife, and that he should release and reconvey, to plaintiff, said premises, subject to or reserving for himself and his said wife a home upon said premises.

The appellant makes two points: First. That the agreement alleged and attempted to be proved is an agreement for a trust, and cannot be proven by parol. (Citing 2 R. S., 134, 135, § 6 , Laws 1860, chap. 322; Cook v. Barr, 44 N. Y., 156 ; Hutchins v. Hutchins, 98 id., 56-63.)

The counsel for defendant does not contend that a deed absolute in form may not by oral evidence be shown to be a mortgage, and, in my opinion, that is all plaintiff is seeking to do here. He wants the property restored to him when the deed has accomplished its purpose as a security. It seems, from the evidence, on the part of the plaintiff, that as a bonus for the favor he was seeking from defendant, or for some other reason, he was willing defendant and his wife should under the deed retain a life interest in the property as a home, but this would not constitute an oral trust because defendant was himself the grantee in the deed.

The defendant’s second point is that the oral evidence is insufficient to prove the deed a mortgage. The evidence (as held by some authorities) required to show that a deed absolute in form was intended as a mortgage, must be convincing beyond a reasonable doubt. (Tilden v. Streeter, 8 N. W. Rep., 502; S. C., 45 Mich., 533.) It must be clear, satisfactory and convincing. (Kibby v. Harsh, 16 N. W. Rep., 85; S. C., 61 Iowa, 196; Johnson v. Van Velsor, 5 N. W. Rep., 223; S. C., 43 Mich., 208, 214.) Each case must be determined upon its own especial facts, but those should be of a clear and decisive import. (Campbell v. Dearborn, 109 Mass., 145.) It must be clear, explicit and unequivocal.

(Null v. Fries, 1 Cent. Rep., 612 [Pa., 1885].) The case does not show whether the rule indicated by the above authorities was adopted at the Special Term, or the rule indicated by another class of authorities which requires “ the triers of fact in civil cases to give a verdict to the party in whose favor the evidence preponderates.” Stearns v. Field, 90 N. Y., 642; Seybolt v. N. Y., L. E. and W. R. R. Co., 95 id., 569.)

It is necessary for us, in reviewing the question of fact, as to whether this deed was proven to be a mortgage, to determine the rule governing us, and we hold it to be as stated in Kerby v. Harsh, Johnson v Van Velsor, Campbell v. Dearborn and Null v. Fries (supra); and that the present case is one of the many exceptions to the general rule given in 90 New York, above.

"With this conclusion in mind we have carefully examined the evidence bearing upon the question, and all the circumstances that are shown to surround the parties and the transaction, and we cannot say that there was error committed in the finding below. (Hellburn v. Rosanson, 2 N. Y. State Rep., 618.)

The judgment should be affirmed, with costs.

Haight, J., concurred ; Bradley, J., taking no part.

Judgment affirmed, with costs.