Blazy v. . McLean

Finch, J. The deed of the plaintiff and her husband to the -defendant McLean ivas declared by the judgment below to have been in truth a collateral security. The property which ■it covered belonged to the plaintiff in her own right, and the ■deed was delivered by her husband apparently in accordance with the terms of a written contract. John Blazy, the husband, and Augustus C. White, as parties of the second part, had contracted with McLean, as party of the first part, for the purchase by them of a farm. That contract recited a consideration of five thousand and ninety-two dollars and fifty-two cents, “ with other stipulations and payments heretofore made and to be performed,” and was signed by the vendor and vendees. What those other stipulations and payments were the contract does not recite ; but indorsed upon it appears the following memorandum, signed by all the parties: *“ In addition to the within payments of $5,092Ann we the parties of the second ]iart agree to pay to the party of the first part two thousand dollars, with semi-annual interest on the same from and after the 1st day of January, 1878, said $2,000 and interest being seamed in part by a deed executed by Elizabeth Blazy and John Blazy on lots Yos. 29 and 30 on the north side of Weeger street in the city of Bochester, and said $2,000 to be paid to the party of the first part prior to the execution of a deed to the parties of the second part; and on the sale of said *48 lots by said McLean the avails of said' sale, after paying all expenses, are to be applied on the $2,000 aforesaid, this being-a part of the original agreement.” By the terms of this memorandum, two thousand dollars was. added to the purchase-price, and that sum was declared to be “ secured in part ” by Mrs. Blazy’s deed. The two lots were not to be taken in payment of the two thousand dollars, but ta become security for that payment “in part.” If the transfer was absolute there was no need of the additional memorandum, or, if made, the price of the lots should have been credited at once. This contract was dated January 23,18Y8, and the deed wag-delivered by the husband the next day. There is no ambiguity in this writing. Blazy and White agreed to pay McLean $2,000 before the delivery of his deed, and* Mrs. Blazy gave her deed as collateral security for their debt. It was, therefore, in substance and effect, a mortgage. The evidence further shows that the debt which it was intended to secure no-longer exists. McLean has conveyed the farm to Mrs. White-for a new consideration agreed upon between them, and without the knowledge or consent of Blazy or his wife. Of course he cannot now claim that the debt of two thousand dollars remains, and that he is entitled to hold the Kochester lots as collateral security. But he takes a different position. He claims in his answer that he took the deed of Mrs. Blazy as payment in full for the $2,000; that Blazy, as vendee, abandoned the contract and forfeited the payment, and the vendor, accepting that abandonment, delivered up the contract as canceled and annulled and resold the premises, to Mrs. White. It is evident that, this-theory cannot stand upon the face of the written contract. That shows that McLean did not take the lots at $2,000 and agree to credit that sum on the contract; and that he took them as security only in part, and if he sold them was to credit merely what he received. There was thus no error in the finding of fact that the deed was given as collateral security, upon the facts permitted to be proven. The debt having been *49 extinguished a reconveyance was a natural and necessary consequence. But the defendant offered to show a very different state of facts. Three times he sought permission to prove that the deed was delivered by Mrs. Blazy and accepted by him as a complete and absolute transfer of the lots, and for which he agreed to allow two thousand dollars as a payment upon her husband’s contract. By the evidence of Blazy, the husband, it appears that there were two occasions on which the subject of the deed was more or less discussed with the wife. One of these was on the day of the execution of the contract, and the other on the next day when the deed was signed and acknowledged. The defendant offered to prove that on each of these occasions it was explained to Mrs. Blazy that the deed was to be absolute, and the value of the lots be at once applied upon the contract. This evidence was steadily excluded. Just that agreement with the wife' was pleaded in the answer, and no ground of objection was stated on the trial, and no allusion to the point is made in the opinion of the General Term. The rulings are briefly defended by the respondent upon the ground that the written contract was conclusive. That is true where the contest is between the parties to the instrument, but not true as against a stranger to it. (Sprague v. Hosmer, 82 N. Y. 466; Lowell Manfg. Co. v. Safe. F. Ins. Co., 88 id. 591.) Mrs. Blazy was no party to this contract and not bound by it. Notwithstanding the agreement of the parties to take the lots as collateral, she was at liberty to apply them absolutely or not at all on her husband’s contract, and the parties to that were at liberty to induce her, if they could fairly, to take that action. When the deed was executed the three parties and Mrs. Blazy were together, and one of defendant’s offers was to show that on that occasion the effect of the deed was explained to her, and she agreed to deliver it absolutely as a payment of §2,000 on the contract, which the defendant agreed to accept and indorse. I cannot discover any lawful objection to that evidence. It does not even contradict or vary the writing. It only shows performance. By the contract Blazy and White *50 were to pay two thousand dollars at any time before the vendor should convey and Mrs. Blazy’s deed was to be.given as security. But if she paid the $2,000 at once no security was needed, and the proof offered showed simply an immediate payment in accord with the terms of the contract, and which merely made the provision for security needless, and superfluous. The rejected evidence shut out the defense, and I am compelled to say that its rejection seems to me to have been a material error. " For this reason the judgment should be reversed and a new trial granted, costs to abide the event. All concur, except Bugeb, Ch. J., not voting. Judgment reversed.