
    Charles H. Erwin, Resp’t, v. Josiah Curtis, as Adm’r and heir-at-law of David Curtis, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 25, 1887.)
    
    1. Deed—Ween intended as a mortgage—Evidence—Sufficiency of.
    The evidence required to show that a deed absolute in form was tended as a mortgage must be clear, satisfactory and convincing.
    3. Same—What does not constitute an oral trust.
    Where the plaintiff was willing that defendant and his wife should under the deed which is sought to be declared a mortgage retain a life interest in the property as a home. Held, this would not conslilu'e an oral trust because defendant was himself the grantee in the deed, and therefore it can be proved by paroi.
    Appeal from final judgment entered September 1Í, 1885, and from interlocutory judgment entered January 9,1885.
    Action was brought in the lifetime of David Curtis, who died after this appeal, when Josiah Curtis, his administrator and heir at law, was substituted as defendant.
    The action is to have a quit-claim deed, dated August 26, 1880, executed by plaintiff to David Curtis, declared a mortgage, and that plaintiff be allowed to redeem, or that said David Curtis reconvey, reserving .to himself a life estate.
    The complaint alleges and the answer admits, that on or about February 14, 1877, the plaintiff being the owner of certain described premises in the -s Jlage of Painted Post, Steuben-county, N. Y., upon which was a dwelling house, occupied by plaintiff as a residence for himself and his family, did, with his wife, execute and deliver to the Southern Tier Savings Bank a mortgage of said premises, as collateral to his bond, to secure the payment of $1,000, one year from the date, with interest; that afterwards and about September 17, 1878, said bond and mortgage were duly assigned to Eleanor C. Hermanee; that at some time prior to August 26, 1880, said Eleanor C. Hermanee commenced an action of foreclosure on said mortgage against the plaintiff; that the defendant procured said bond and mortgage to be assigned and transferred to him by said Eleanor C. Hermanee upon the payment to her of the amount secured thereby and the interest, and the costs of said action; that plaintiff executed and delivered to defendant a quit-claim deed of said premises.
    
      A. S. Kendall, for app’lt; G. T. Spencer, for resp’t.
   Angle, J.

The controlling questions in this action arise under the issue taken by 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 to assist him otherwise than by procuring an assignment of the Hermanee bond and mortgage, and on condition that plaintiff should execute to defendant a quit-claim 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 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 would 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 paroi, citing 2 R, S., 135, sec. 6; Laws 1860, chap. 322; Cook v. Barr (44 N. Y., 156); Hutchings v. Hutchings (98 N. Y., 56, 63). The counsel 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 insufficent 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. Kilby v. Harsh, 16 N. W. Rep., 85; S. C., 61 Iowa, 196; Johnson v. Van Velsor, 6 N. W. Rep., 273; 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 Central Reporter, 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 require “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; Leybolt v. N. Y. and L. E. 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 Kilby v. Harsh, Johnson v. Van Velsor, Campbell v. Dearborn and Null v. Fries, supra.

With this conclusion, and that the present case is one of tjie many exceptions to the general rule given in 90 N. Y., above, 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 an error committed in the finding below. Hellburn v. Rosenson, 2 N. Y. State Rep., 618.

J udgment affirmed, with costs.

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