Barrett v. Carter

By the Court — Miller, P. J. It is well settled that in a court of equity it may be shown by paroi evidence that a deed or instrument absolute on its face, was at the time of its execution intended by the parties to it as a mortgage. (Hodges v. Tenn. Marine Fire Ins. Co., 4 Seld., 416 ; Despart v. Walbridge, 15 N. Y., 374; Sturtevant v. Sturtevant, 20 N. Y., 39; Van Deusen v. Worrell, 3 Keyes, 311; Burney v. Wellman, 42 Barb., 390; Will Eq. Jur., 429.) This rule, however, only prevails to the extent of showing that at the time of the execution and delivery of a deed or assignment absolute upon its face, the parties actually designed that it should be a mortgage or a collateral security. A subsequent agreement to that effect is not enough, unless it be in writing and formally executed. The distinction between the two cases is clearly manifest, and was recognized in Sturtevant v. Sturtevant (20 N. Y. R., 40), when it was held, that the grantor in an absolute conveyance of land not alleging fraud or mistake cannot prove by paroi that the grant was in trust for himself. The court say: “ There is in this case some evidence tending to show that the defendant was apparently willing to give up the land at one time on being paid [71] what the plaintiff then owed him; in other words, that he was willing to recognize and carry out the trust. But there is nothing to show that the deed was intended at its execution as a mortgage.” The soundness of this distinction is manifest in applying it to the present case. The evidence shows that the deceased held the legal title to the premises in question at the time of his death in August, 1866, which he acquired of the plaintiff in the month of July, 1863. About this time the deceased had obtained a lease of the premises from the owner, it having previously been held by the plaintiff under a verbal agreement; he had also executed a writing to. the plaintiff by which he agreed to assume and pay certain debts, demands and taxes then existing, and the back rents of said lot. He also afterward, and up to the time of his decease, received a portion of the rents, and made some improvements on the property, and devised it by his last will and testament. There is no evidence that the plaintiff ever paid any interest, made any repairs, paid any taxes or received any rents, or claimed title. In opposition to these strong facts, which show that the deceased was the absolute owner of the premises, is the alleged discrepancy between the price paid and the present value proved; the occupation of the plaintiff of a portion of the premises, and, what is mainly relied upon, conversations between the deceased and the plaintiff’s wife, which it is claimed establish an admission that the property was held merely as security. The principal conversation relied upon was had during the last sickness of the plaintiff’s wife, while the deceased was attending her as a physician, when it may have been the .case that the deceased deemed it advisable not to contradict the patient in her debilitated and prostrated condition, and with these views told her not to worry herself about it until she got well. The other declaration was made two years previously, and was disclosed upon the re-direct examination of the witness, who testified to the conversation before referred to. It will be observed that neither of these declarations stated what the original arrangement was between the [72] parties, and if reliable, may very well have related to some other and subsequent- contract for the purchase of the property of the deceased, besides the agreement contained in the written instruments executed between the parties. As already manifest, this would not bring the case within the rule, that paroi evidence could be given to show that the transfer of the property was intended as a mortgage. But giving to such declarations all the force to which they are entitled under the most favorable circumstances, it may well be urged, that they merely tend to show a willingness to surrender the property at what it had actually cost, and not as establishing an agreement made at the time the title passed. In considering the weight to which such testimony is entitled, it must not be overlooked that declarations of this character áre regarded as loose and uncertain testimony, and as the most dangerous species of evidence. A slight mistake or failure of recollection will pervert the entire meaning of a sentence, and change the effect of the words actually used. (Garvin v. Acker, 2 Barb., 25.) Such admissions, which do not show in any way what the agreement was, are not enough to overturn the original contract and papers accompanying it, which are absolute upon their face. (See Cook v. Eaton, 16 Barb., 442.) Although courts of equity scrutinize closely transactions between persons standing in the relation of physician and patient, yet there is, I think, no proof given or to be inferred of undue influence exercised over the plaintiff, which of itself or in connection with the circumstances proved, wrould authorize the interference of the court on that account. See Nesbit v. Lockman (34 N. Y., 167), and cases there cited. It may also be observed that the facts adverted to wrere properly presented to the consideration of the referee ; and it is by no means clear that they are so entirely preponderating in favor of the plaintiff as to authorize the conclusion that the judgment of the referee was erroneous, and that his findings were directly against the evidence, as is claimed by the plaintiff’s counsel. [73] It is insisted that the referee erred in excluding the question put to the plaintiff, whether he had ever paid any rent to the deceased for occupying the house since the assignment. The testimony called for a personal transaction between the witness and the testator during the life of the latter, and, I think, was properly excluded. (Code, § 399.) Although it was negative testimony, yet it related to the subject-matter of the controversy, and to a fact in regard to the action of the testator, which cannot be considered otherwise than as a transaction between the parties. The object of the provision of the Code cited, was to prevent a party being called to prove a transaction where the other party was deceased; and if the plaintiff could testify to what was proposed, an important fact would be established without any means of contradiction. This would be a narrow construction of the enactment, and entirely defeat its purpose. There was no error in the refusal of the referee to open the case to hear further evidence. After the parties to an action have rested, the admission or exclusion of further testimony rests in the discretion of the judge, or referee, before whom the trial is had. (Stacy v. Graham, 3 Duer, 453, aff’d, 14 N. Y., 497.) Unless this discretion has been abused, certainly the court should not interfere; and as no excuse is shown for not calling the witness prior to this time, there is no ground for holding that the referee erred. There was no error in the trial, and the judgment must be affirmed with costs. Judgment affirmed.