
    Benjamin L. Conde, Adm’r, Resp’t, v. Hiram Wiltsie et al., Ex’rs, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1891.)
    
    Vendor and purchaser—Action to recover consideration.
    Plaintiff’s intestate conveyed certain premises subject to mortgage to defendant’s testator. In an action to recover the consideration therefor the husband of intestate testified that testator agreed to give her $2,000 therefor and to pay as soon as he sold the property, and that sales exceeding that amount had been made. Intestate’s sister also testified to admissions of testator that he had taken the property to save it for intestate, and would give her all it brought over what she had of him. Defendant’s evidence tended to show that the mortgage and the indebtedness of intestate to the testator was to be deducted from the avails of sale. Held, that it would have been error to nonsuit or direct a verdict on this conflict of evidence, and that the verdict of the jury was conclusive.
    Appeal from judgment in favor of plaintiff entered upon verdict.
    
      Andrew Vanderzee (Nathaniel G. Moah, of counsel), for app’lts; Van Alstyne & Hevenor (T. J. Van Alstyne, of counsel), for resp’t
   Kellogg, J.

This case seems to have presented a simple question of fact for the jury. It was submitted to the jury and a verdict rendered in favor of the plaintiff. From the judgment •in favor of the plaintiff defendant appeals. It appears that in April, 1877, Hannah M. Ham, deceased since the trial in this action, conveyed by deed of warranty certainreal estate to Ambrose Wiltsie, Jr., who has since died ; that the consideration expressed in such deed was $2,000, with the usual declaration of acknowledgment of its payment to the vendor. The deed is made subject to a mortgage of about a thousand dollars upon the premises. It is alleged in the complaint that the consideration of $2,000 has never been paid ; that the grantee at the time of the delivery of the deed promised to make payment thereafter, and subsequently made some small payments in pursuance of such promise. It is ■also claimed by the plaintiff that the mortgage upon the premises was also to be paid by the vendee in addition to the consideration ■of $2,000 expressed. On the part of the defendant it is claimed by answer that the deed was taken by the grantee, who was subsequently to sell the said property for the best price he could obtain, and out of the proceeds of sale to deduct the sums of money-then owing by the grantor to the grantee and also the sum of money which he might have to pay in extinguishment of the mortgage upon the premises, and the balance, if any, should be paid over to Hannah M. Ham, the grantor.

To support the contention of the plaintiff she produces as a witness the husband of the grantor, who testified that he was present at the time the arrangement was made in reference to the conveyance of this property to Ambrose Wiltsie, Jr., the grantee; that it was “ that he would buy the property for her, and would give her two thousand dollars for the property, subject to the mortgage held by Joslin Nodine. He further said he would take the property, and as soon as he sold it he would pay her for it” That in pursuance of such agreement a deed was made and delivered. That subsequent thereto, and in 1881, a portion of said premises were sold for $1,000, and in 1882 the balance of said premises were sold for $1,100. The plaintiff also produced as a witness one Mary E. Baumes, a sister of Hannah M. Ham, the grantor, who testified to a conversation with Ambrose Wiltsie, the grantee in the deed, had in the year 1880, in which she says: “ He (Wiltsie) told me he had taken the property to save it for her (Hannah M. Ham); that he meant to sell it again, and every dollar that he got more than she had of him he meant she should have.” To controvert this proof and to establish before the jury that any payment on the mortgage then on the premises was to be taken out of the avails of the sale of the property when made, and also to establish that the indebtedness existing in Hannah M„ Ham to the grantee was also to be taken out, and what that indebtedness was, the defendant offered a letter written in 1876 and prior to the conveyance by Hannah M. Ham to the grantee aforesaid, and relied upon the book of accounts of the said Ambrose Wiltsie offered in evidence by the plaintiff, and also statements-made by Hannah M. Ham as to her not having any property at a time subsequent to the conveyance by this deed, and certain other proofs, all of which were submitted to the jury under the instructions contained in the charge of the court, and upon all the evidence the jury were instructed to find upon all the questions involved.

It does not appear that any error was committed in the charge of the court taken as a whole, or that any error was committed by the court in the allowance of the evidence offered, or in the exclusion of any evidence offered. It would have been error to have granted a nonsuit, and error to have directed a verdict upon facts and proof so conflicting. We think there is sufficient evidence in the case to support the verdict of the jury, and that it was eminently a case for their consideration and final determination upon the facts.

Judgment affirmed, with costs.

Learned, P. J., concurs; Matham, J., not acting.  