Phœnix v. Gardner

-Wilson, Ch. J.- Biy the Court -When this case was before us at the last term, my brethren held that on account of certain irregularities and defects in the record, it would be proper to "remand it for an amended return. The amended return has been made and filed in this Court, and cures the formal errors which before stood in the way of a disposition of [433] the case on the merits. Certain questions not before considered, we will now pass upon. At this stage of the case, the objection that the complaint does not state facts sufficient to constitute a cause of action, will not be allowed if the pleading can be sustained by the most liberal intendment.in its favor. If the complaint is informal, the defendants’ remedy was in the Court below. The allegation that the defendant delivered to the plaintiffs a warranty deed of certain lots as collateral to secure the payment of a promissory note, shows that the deed was in legal effect a mortgage. A deed absolute on its face, given as security for a debt, is a mortgage, and the character of the transaction may be shown by parol evidence of the circumstances under which the deed was made, and the relation subsisting between the parties. See 3 heading oases i/n JSguity (3 Am. JSd.), 624-630. The complaint, therefore, we think, is not fatally defective. The letter accompanying the deed was admissible evidence to show the nature of the transaction. It was part of the res gestae. So, also, was the letter of the defendant written in May, 1861, competent evidence; it tended to prove a fact inconsistent with the theory that the deed was intended as an absolute conveyance. The evidence of the defendant Gardner as to what Ms intention was at the time of making the deed was properly excluded. It is not material what was his intention. The question is, what was the contract of the parties, and his intention not communicated to the plaintiffs could not affect that. We think the new trial was properly allowed for the reasons given by the court below. Order affirmed.