
    William S. Fullerton, Appellant, v. John McCurdy et al., Respondents.
    In an action to have a deed to the defendant declared an equitable mortgage, the court found as facts, in substance, that one S. had agreed verbally to convey certain premises to plaintiff for $2,300; that it was verbally agreed between plaintiff and defendant that the latter should advance the money to pay for the premises, take the title, and upon payment to him thereafter of an agreed amount, should convey to plaintiff; that defendant thereupon paid the purchase-money and took the title. The court found, as conclusions of law, that defendant’s deed was not a mortgage, but that he took the premises as purchaser; and that the relation between him and plaintiff was that of vendor and purchaser; under a verbal agreement. Held, no error; that the burden of proof was upon plaintiff to show the deed was taken as security for a loan, and that, as there was no finding, that the plaintiff became a debtor or bound himself to pay the purchase-price,' there was nothing inconsistent with the finding that the transaction was a parol conditional sale, not a mortgage.
    (Argued February 27, 1873;
    decided November 18, 1873.)
    
      Hill v. Grant (46 N. Y., 496), Horn v. Ketelim (46 id., 605), Stoddard v. Whiting (46 id., 637) and Carry. Oarr (52 id., 251) distinguished.
    The complaint in this action alleged, in substance, that on the 5th of April, 1865, plaintiff was in possession of certain premises owned by one Shafer, who had agreed to convey the same to plaintiff, or to whomsoever he should direct, for $2,300. That plaintiff applied to defendant, McCurdy, for a loan of the money, and it was usuriously agreed that defendant should loan and advance the money at seven and three-tenths per cent interest; and, as security therefor, should take a conveyance of the premises; and, in pursuance thereof, defendant did loan the money, which was paid , to Shafer, who thereupon deeded the premises to defendant. The complaint alleged a tender of the amount loaned, with interest, as agreed, and a demand of a deed, and a refusal by defendant to convey. Plaintiff asked that the defendant’s deed be adjudged an equitable mortgage, and that the same be declared usurious and void, and the equitable title of the premises to be in plaintiff.
    The cause was tried by the court at Special Term, who found, in substance, that prior to April 3d, 1865, Shafer owned and was in possession of the premises in question, and had agreed verbally to convey the same to plaintiff upon payment of $2,300. That plaintiff applied to defendant to loan him the money, and it was yerbally agreed between them that defendant should advance-and pay to Shafer the said amount, and should take the title; and that upon payment to him thereafter by plaintiff of the amount, with interest at seven and three-tenths per cent, defendant would convey the premises to plaintiff; that meanwhile plaintiff should have possession and pay rent to defendant ; that defendant paid the money and took the title, and plaintiff occupied, paying rent until about the 20th May, 1868, when defendant notified plaintiff that he must pay the purchase-money by the twentieth June thereafter, or that the former should consider the agreement at an end. That nothing further was done until September, 1868, when defendant contracted to sell to one Foster. That, in October, 1868, plaintiff tendered the purchase-price and demanded a deed, but defendant declined to accept or to give a deed. As conclusions of law, the court found that defendant’s deed was not a mortgage, but that he took the premises as purchaser, and that the relation between him and plaintiff, after the conveyance, was as vendor and purchaser, under a verbal agreement, and thereupon a dismissal of the complaint was directed. Held, no error; that the burden of proof was upon plaintiff to show that the deed was taken by defendant for plaintiff’s benefit, and as security for a loan, and, unless such fact was established by the findings, no error was disclosed. That, as there were no findings that plaintiff became a debtor or bound himself to pay the purchase-price, there was nothing in them inconsistent with the conclusion that the transaction was a parol conditional sale, not a mortgage. {Hill v. Grant, 46 1ST. Y., 496.) That .the case was distinguishable from Horn v. Keteltas (46 N. Y., 605), as there the court found, as a fact, that the advance was a loan, as was also the case in Stoddard v. WMt/rng (46 N. Y., 627), where plaintiff also had a written contract of purchase. In Carr v. Carr (52 N. Y., 251), plaintiff had paid a portion of the purchase-price, and there was a finding, also, that defendant received the deed as security for repayment of the advance. ■
    Plaintiff claimed that if defendant was held to be absolute owner he was entitled to a judgment of specific performance of the verbal agreement to convey on payment of the purchase-money. Held, that such relief was properly refused; that it was wholly inconsistent with the case made by the complaint, as that alleges and seeks to establish a title in plaintiff, while a claim for specific performance necessarily admits title in defendant; also, that the necessary parties were not before the court, nor were the facts found sufficient to show a right to a specific performance. That occupancy and payment of rent or interest was not sufficient to establish a part performance.
    
      S. Hubbard for the appellant.
    
      John A. YanderWp for the respondents.
   Rapallo, J.,

reads for affirmance.

All concur.

Judgment affirmed.  