
    John Foster Nevius, Appellant, v. Peter I. Nevius and Others, Respondents.
    First Department,
    January 11, 1907.
    Sale—.when parol evidence inadmissible to show that absolute bill of sale was intended to create trust.
    A bill, of sale, absolute upon its face, which recites that the vendor is indebted to the vendee for a sum of money not named, which he is desirous of paying, and that the assignment is made “ to that purpose ” cannot be shown by parol evidence to have been intended as an assignment and conveyance in trust to pay such sum as the vendor- might be found to owe the vendee.'
    
      Hence, an action for an accounting against the vendee cannot be brought on the theory that the hill of sale was intended as a-mortgage, for the action of accounting is not one to redeem the property and is inconsistent with such action.
    Houghton, J., dissented, with memorandum.
    Appeal by the plaintiff, John Foster Nevius, from a judgment of the Supreme Court in favor of the defendants,- entered in the office of the clerk of the county of New York on the 9 th day of May, 1906, upon the decision of the court, rendered after a trial at the New York Special Term* .dismissing the complaint on the opening of the case upon the ground that it fails to. state facts sufficient to constitute a cause of action.
    
      John H. Began, for the appellant.
    
      Herbert Si Barnes, for the respondent Jacobson.
    
      J. Frederie Hernoehan, for the respondent Peter I. Nevius.
    
      Eugene H. Lewis \John 0. Bowe with him -on the brief], for the respondents Church, Jnlieh and Louise II. Nevius.
   Laughlin, J.:

This action was placed upon the Special Term calendar, and brought to trial as a suit in equity for an accounting concerning personal and real property assigned and conveyed by the plaintiff to the defendant Peter I. Nevius by an instrument in writing made on the 10th day of December, 1886, and delivered to said defendant pursuant thereto. The instrument assigning and conveying the property is annexed to the complaint and made a part thereof. It recites that the plaintiff is indebted to the firm of Peter I. Nevius & Son, in which name the defendant Peter I. Nevius was doing business, “in a considerable sum of money” which the-plaintiff “is desirous of paying.” It then provides: “Now, therefore, to that purpose tliis indenture * . "x" * Witnesseth that the said party of the first part (the plaintiff) for and in consideration of the sum of One Dollar ($1) to him in hand paid by Peter I. Nevius and another good and valuable consideration thereto rendered by him to the said John Foster Nevius, he'thereurito moving, has granted, bargained, -sold,- assigned, transferred and set over, and by these presents does grant, bargain, sell, assign, transfer-and set over unto the said Peter 1. Kevius,- all right,'.title and interest of the party of the first part in and to all benefits and advantages, to the said John Foster.Kevius, given him as devisee or legatee named in the last will and testament of his father Peter I. Kevius, now deceased, oías devisee or legatee under the last'will and testament of his mother, Mathilda Walker Kevius, likewise deceased, and all property real and personal and the rights thereto which might hereafter accrue to- said party of the first part by virtue of anything contained in the last will and testament or as heir-at-law of his said father or his said mother; and likewise all beneficial, interests of tlie said party of the first part in and to a certain policy of insurance for ten thousand dollars ($10,000) on tlie life of the said' Peter I. Kevins, deceased, and which said policy 'is' now held by John Frederick Kevius, as executor of the last will and testament aforesaid. To have and to hold the hereinbefore described property and the whole thereof unto the said Peter I. Kevius and to his heirs, executors, administrators and assigns forever. In witness whereof the said ■ John Foster Kevius has hereunto set his hand and seal the year and day first written.” '

The plaintiff does not allege that there was any fraud or mistake in. the reduction of the agreement to writing or that" the instrument of assignment and conveyance did not correctly embody the agreement of the parties, and he does not ask for a reformation thereof. ' He alleges, however, that the instrument was executed as a deed of trust and that the property ivas delivered in trust to ■ secure the payment, of the sums of money then owing by the plaintiff to the firm of Peter L Kevins & Son ; .that most of the property has been assigned or transferred by the defendant Peter I. Kevius to the other defendants with full knowledge of the trust; that plaintiff long since demanded an accounting o'f his rights, interest and property and was informed, that diis indebtedness: to' said firm- and to the estate of his father more than exceeded tlie value of the property assigned and conveyed by him to the defendant Peter I. Kevius, hs aforesaid,, but that he. lias recently" been informed and believes that this information was untrue and was fraudulently given with a view to deceiving the plaintiff and inducing him to refrain from, insisting upon an accounting, and that when lie discovered the falsity of these representations, he endeavored to obtain from the defendants an accounting under the instrument assigning and conveying the properly to the defendant Peter I. Kevius, which he designates a deed of trust. The prayer for relief is that an accounting be had of the plaintiff’s indebtedness to the firm of Peter I. Kevius & Son and to the estate of Peter I. Kevius, deceased, and of all the rights, interest and property assigned and conveyed by the alleged deed of trust, and that if upon such accounting it should be found that there is any sum due and owing from the defendants to the plaintiff; that they be decreed to pay the same, and for such other and further relief as'may be just.

. The correctness of the decision depends upon a construction .of the instrument assigning and conveying the property. The appellant contends that it is susceptible of the construction that the intention was to assign and convey the property in trust to apply the same in payment of his indebtedness to the defendant Peter I. Kevius and to account to him for the surplus, if any.

The respondents claim that the instrument was intended as an absolute assignment and conveyance of the property in satisfaction and extinguishment of the plaintiff’s indebtedness to said Peter I. Kevius. The instrument does not recite in express terms that it is executed in full satisfaction of the indebtedness, but reading it as a whole, the inference that that was the intention of the parties is cpiite manifest. Keither the amount of the indebtedness nor the value of the property assigned and conveyed is stated or estimated. It is recited that the indebtedness is “ a considerable sum of money ” which the plaintiff “is desirous of paying,” and that the assignment and conveyance were made “ to that purpose.” Literally construed, the instrument means that the plaintiff was desirous of paying all of the indebtedness and that the assignment and conveyance were made to accomplish that; purpose. The assignment and conveyance are absolute and there is no suggestion of an accounting or anything to qualify them. Such being the legal effect of the instrument, as we view it, and none of its provisions being ambiguous, parol evidence to show that it was intended as an assignment, and conveyance in trust, instead of absolutely, would be contradictory of its terms, and, therefore, inadmissible..

Kor would parol evidence be admissible under the doctrine which admits such evidence, to show that a 'bill of sale or deed absolute on its face was intended as a mortgage. This is not an action to redeem the property, and. that theory would be utterly inconsistent with the complaint which charges that the assignment and conveyance was made in trust to collect, apply and account.

It follows that the judgment should be affirmed, with costs.

Patterson, P. J., Ingraham and' McLaughlin, JJ., concurred; Houghton, J. (dissented).

Houghton, J. (dissenting) :

I-dissent on the ground that the complaint is good as to the persoñalty transferred, which might have been in trust without a writing, and hence can be established by parol evidence,

Judgment affirmed, with costs. Order filed.  