Ryan & Nevins v. Dox

By the Court, Welles, J. It may be regarded as a settled doctrine of courts of equity, that parol evidence is admissible to [447] show that a deed, absolute in its terms, was intended only as a mortgage. (4 Kent’s Com. 142, 3d ed. Strong v. Stewart, 4 John. Ch. 167, and cases there cited. Whittick v Kane, 1 Paige, 202. Van Buren v. Olmstead, 5 id. 9. Hodges v. Tenn. Mar. Ins. Co., 4 Selden, 416.) The rule of law is otherwise. (Webb v Rice, 6 Hill, 219.) It seems to me, however, that the equitable doctrine does not extend to an official conveyance. The parol evidence contemplated is always upon the question of the intention of the parties to the conveyance. A sheriff, master, or other officer, selling property under a process, decree or judgment of the court, cannot make a valid agreement with a purchaser to convey any other estate than such as the decree or judgment will warrant. Ho intention of the parties to such conveyance can give to it an effect other than what the law affixes to it. Every case which I have met with, where an absolute deed has been treated as a mortgage, was where there had been a loan to, or an indebtedness by, the party executing the deed, and where the deed was intended at the time as a security for the loan or indebtedness. In such eases, an absolute conveyance would not express the intention of the parties, and courts of equity, under the jurisdictional head of mistake, would generally reform the deed, by turning it into a defeasible conveyance, and give it effect as such, according to the original intention of the parties. In the case at bar, it is not claimed that there was either fraud, accident, mistake or surprise in the sale to the defendant, by the master, of the premises in question; or that a conveyance by the master should have been made of any different effect than was made. Indeed, none other could have been given by the master. The very conveyance which the parties to this action contemplated, as alleged in the complaint, was in fact given. The idea of the court reforming that deed by giving it a defeasible character, upon parol evidence that the parties so intended, or of the court adjudging that the defendant took an estate or interest in the premises by virtue of it, which was subject to be defeated by the payment of money by the plaintiffs to him, would be something new in equity jurisprudence. [448] I do not say that it was not competent for these parties to enter into a valid agreement, in view of their expectation that the defendant would become the purchaser at the master’s sale, and thereby acquire the title to the premises, which should provide that in such event the defendant would convey to the plaintiffs at such time and upon such terms as the agreement should specify. But such an agreement would be one for the sale of the land, and would be void unless manifested in writing. (2 R. iS. 134, § 6.) But the fact that the conveyance in this case was precisely what all the parties intended, puts an end to the claim which the plaintiffs now make, that the court shall treat it as an instrument in the nature of a mortgage, or give it any other effect than what its terms import. My conclusion is, that the parol evidence offered by the plaintiffs, of an agreement between them and the defendant, as set forth in the complaint, was properly excluded by the referee, upon the ground that the allowance of such evidence would have been in direct violation of the statute of frauds. (Lathrop v. Hoyt, 7 Barb. 59. Cook v. Eaton, 16 id. 439. Getman v. Getman, 1 Barb. Ch. R. 499. Van Alstine v. Wimple, 5 Cowen, 162.) The only tendency of the further offer of evidence by the plaintiffs would have been, if admitted, to show a parol agreement for the sale of the premises to the plaintiffs with a partial performance on their part. Assuming the evidence to have been given as offered—and we can assume nothing more in this connection in favor of the plaintiffs—it would have fallen entirely short of forming grounds for affording any relief to them, upon the case as stated in the complaint. Any judgment the court could give would have to be according to the allegations and proofs. One part of the offer was to prove an agreement by the plaintiffs, with the defendant and Prouty. The agreement set forth in the complaint was between the plaintiffs and the defendant. The other facts offered to be proved are consistent with indulgence granted by the defendant to the plaintiffs. They certainly fail of proving an agreement for a sale of the premises, [449] or of part performance of any such supposed contract. (Story’s Eq. Jur. §§ 762, 764.) [Monroe General Term, September 7, 1857. Upon the whole we think the judgment should he affirmed, with costs of the appeal. Ordered accordingly. Johnson, T, R, Strong and Welles, Justices.]