
    Peter Rice, Resp’t, v. Patrick Daly et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Mortgage—Evidence.
    In an action upon an alleged lost purchase money bond and mortgage, the existence and validity of which were denied, evidence was admitted of payments by one who had, before such payments, conveyed his interest in the property to defendants and had since died. Held, error.
    
      % Same.
    Evidence of plaintiff as to transactions with and declarations of the mortgagee, since deceased, are inadmissible, in such a case, under § 829 of the Code.
    Appeal from judgment in favor of plaintiff, entered upon findings of the court approving the verdict of a jury, and from order denying defendants’ motion to set aside the verdict and for a new trial.
    The action was to foreclose an alleged lost and unrecorded mortgage.
    The defense was, that no mortgage existed, and that the defendants were purchasers in good faith for full value, and without notice.
    The plaintiff claimed to be the assignee of an alleged lost and unrecorded mortgage, alleged to have been executed by the father of the defendants in April, 1871, to one Samuel Norris, for $2,500. It was claimed that Norris had bequeathed this alleged mortgage to his wife, although no proof of that fact was given, and that she, on the 21st day of July, 1882, assigned it to her cousin, John P. Bice, who, in turn, on the 24th day of July, 1888, had assigned it to his brother, the plaintiff. The mortgage was alleged to have been lost in 1882, before these assignments, by the widow of Norris, who was the executrix of his will.
    The elder Daly, who had purchased these premises of Norris, had, on November 6, 1872, conveyed them to his three sons, Thomas, Patrick, Jr., and William j.
    William J., February 3, 1876, conveyed his undivided one-third interest to the defendants and died in 1885.
    On the trial plaintiff was allowed to give evidence as to an interview between Norris and the defendants and William J. Daly, in which Norris said he was not going to have the mortgage recorded, and that William gave the mortgage to Thomas, who put it .in his pocket. He was also allowed to testify to payments of interest made bv William after 1880.
    
      G. C. & J. B. Keeler (A. T. Clearwater, of counsel), for app’lt; John R. De Vany (J. Newton Fiero, of counsel), for resp’t.
   Per Curiam.

In this case we think some incompetent evidence was inadvertently received, which may have influenced the result, and hence that a new trial should be granted.

The defendants, Patrick Daly, Thomas Daly and Patrick Daly, Jr., only answered, and it was the issue made by their answers to the complaint and the reply to one of said answers that was tried.

The action was upon a bond and mortgage, the existence and validity of which was disputed by defendants. The plaintiff, against the objection of defendants, was allowed to show that one "William Daly had made payments on said mortgage after 1880. This evidence was important and may have influenced the verdict. We are unable to see how the statement or the acts of William Daly could be held competent against the defendants. No fact was shown upon the trial rendering such evidence proper. It did not appear when this evidence was given what interest, if any, William Daly ever had in the mortgaged premises, except from the statements contained in the answers. But the answers alleged the death of William Daly and that he conveyed to the defendants in 1876, prior to the transaction of the payments on the mortgage which the plaintiff was .allowed to show. Afterwards the deed from William Daly to the defendants, executed in 1876, was read in evidence.

Therefore, when the plaintiff was allowed to show the payments so made by William Daly there was no evidence in the case showing such evidence proper against the defendants, and in fact he being deceased, and having in T876 conveyed his interest in the mortgaged premises to the defendants, the evidence so received was, we think, clearly incompetent.

It was also error to receive the testimony of plaintiff as to the transactions with and declarations of Norris, the deceased mortgagee. The facts so testified to by the plaintiff relate to a personal transaction between the witness and the deceased party against persons in occupation of the mortgaged premises and who presumably (at that stage of the trial when this evidence was so received), and in fact, derived their title or interest in said premises through or under the deceased party. The evidence so received cannot be deemed unimportant and may have had weight with the jury.

The judgment should be reversed and a new trial granted, costs to abide the event

Mayham, P. J., and Herrick, J., concur.  