
    Sidway v. Sidway et al.
    
    
      (Supreme Court, General Term, Fifth, Department.
    
    October 19, 1889.)
    1. Mortgages—In Form of Absolute Deed —Evidence.
    In an action by the grantor’s widow to have an absolute deed declared a mortgage, it appeared that defendant loaned the grantor some money, and that thereafter, for a nominal consideration, he executed the deed in question to defendant. There was no written evidence of the loan. The evidence showed that the loan represented a fair market price for the premises, and the only direct evidence that the deed was to be treated as a mortgage was that of plaintiff, who testified that before the loan defendant told the grantor she would loan him the money on security of the premises, and that when he paid her back he could have a release; and that on another occasion defendant told him that he could have the money on security of the property, but grantor did not signify his assent to those remarks. Plaintiff also stated that her husband and defendant had much business together which was not transacted in her presence, and about which she knew nothing. Another witness made contradictory statements as to the import of conversation she overheard relative to the subject, and defendant denied making the statements testified to by plaintiff. Held, that the deed would not be declared a mortgage.
    2. Witness—Competency—Transactions with Decedents.
    Defendant’s evidence as to such statements was admissible under the exception of Code Civil Proc. FT. Y. § 829, providing that a party interested in an action shall not be examined as a witness in his own behalf against.a person deriving his interest or title from a deceased person, concerning a transaction or communication between the witness and the deceased person, except where the person so deriving interest or title is examined in his own behalf.
    8. Same—Privileged Communications—Harmless Error.
    Though the testimony of the grantor’s counsel, that the grantor told him that he had a great deal of money from defendant, and requested him to prepare the deed, may be a disclosure of a privileged communication, its admission is not prejudicial to plaintiff.
    4. Trial—Feigned Issues—Effects of Findings.
    Though the findings on feigned issues, submitted to the jury, if adopted, would entitle plaintiff to the relief demanded, the judge who presided at the trial may, on trial at special term, disregard such findings and find for defendant.
    
      Appeal from special term, Erie county.
    Action by Isabel Sidway against Eliza D. Sidway and others. The action was to reform a deed conveying certain premises located in the city of Buffalo in fee to the defendant Eliza D. Sidway, and to have the same declared a mortgage, to secure the sum of $5,000, and to allow the plaintiff, who claims to be the present owner of the fee, to redeem the premises therefrom. The deed was made and executed on the 14th day of April, 1884, by William J. Sid way and the plaintiff, his wife, to the defendant Eliza D. Sid way, who was the mother of the said William J., expressing a consideration of one dollar only. At that time the grantor, William J., was the owner of the fee, having derived his title as the sole heir at law of his deceased father, John J. Sidway, subject to the unmeasured right of dower of the defendant, who is the widow of the said John J. Sidway. The premises are located in the business part of the city of Buffalo, and were in part occupied as the residence of the parties to the deed, the first floor being rented to third parties as a place of business. The value of the premises at the time the deed was executed was found by the court to be $20,000, subject to a mortgage in amount about $18,000, and the value of the widow’s right of dower was estimated by the court to be $735. After the deed was delivered the parties continued to reside on the premises, living together as one family, until the death of William J., which occurred in June, 1885. At that time the plaintiff was pregnant with child, that was born alive, and died a few days thereafter, and the plaintiff claims title to the premises as its sole heir at law. Special issues were framed to be tried by a jury, which' embraced all the material questions of fact in dispute, all of which were answered by the jury in the plaintiff’s favor, and, if they had been adopted and embraced in the decision of the court, would have entitled the plaintiff to the relief demanded. Thereafter the trial of the action was moved at special term, held by the same justice who presided at the trial before the jury, and the plaintiff, to maintain the issues on her part, offered in evidence a duly-certified copy of the findings of the jury, together with all the evidence taken upon that trial, which was read and submitted to the court, and thereupon the plaintiff rested, and the defendant offered no evidence. The special term made and filed a decision, passing upon all the material issues, and found and held as a matter of fact that on the 12th day of April, 1884, the decedent, William J. Sidway, and the plaintiff herein, executed and delivered to the defendant Eliza D. Sid-way a quitclaim deed of the lands and premises in payment and discharge of the loan of the sum of $5,000, made by the said Eliza to the said William J., in March, 1884, and that there was no understanding or agreement that the said deed was given as a security for the said loan, and that a fair market price was paid for the premises. The plaintiff made requests that the court make findings of fact in conformity to the verdict of the jury, which was refused, and the plaintiff appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      George T. Quinby, for appellant. William L. Marey, for respondents.
   Barker, P. J.

The judgment is to be reviewed on this appeal the same as if the trial had been by the court without the intervention of a jury. Where feigned issues have been sent to a jury for trial, the court may adopt the verdict and find the facts in accordance therewith, or may disregard it and make its own findings, and when the case comes up on appeal it is to be reviewed on the findings and decision of the court as if there had been no submission of any question of fact to a jury. Colie v. Tifft, 47 N. Y. 119; Acker v. Leland, 109 N. Y. 5, 15 N. E. Rep. 743; Carroll v. Deimel, 95 N. Y. 252. The court may retry the same questions on the'evidenee taken on the trial before the jury, or proceed de nova, and require the parties to produce original proofs. At the special term the plaintiff submitted the case on the special findings of the jury and the evidence taken on that trial.' The same judge presided on both trials. Although no formal order appears to have been made setting aside the verdict, it was' wholly disregarded at the special term, and there was a refusal to incorporate in its findings of fact any of the facts found'by the jury. These rulings have the effect of setting aside the verdict, and retrying the case on the evidence taken on the trial on the special issues. The learned trial judge was not satisfied from the evidence that the conveyance was intended as a mortgage to secure the grantee for the loan of money made by her to the grantor a few days prior to the execution of the deed. This was the plaintiff’s position, and the burden of proof was upon her to sustain the allegation.

It seems now to be well settled that if at the time the deed is delivered for the conveyance of land in fee, it is intended by the parties thereto as a security for a loan of money, or of a pre-existing debt, the fact may be proved by paroi evidence, although no fraud or mistake is alleged as a ground for relief. If the transaction was in substance a loan of money, upon the security of the premises, equity will look through the form of the conveyance and declare it to be a mortgage, that the intention of the parties may prevail. This doctrine is so uniformly declared by the courts that it is no longer open for discussion, at least in the courts of this state. The paroi evidence, however, upon which the grantor relies to establish that a deed executed by him, absolute in terms, was intended only as a mortgage, must have the force and conclusiveness not required on the trial of ordinary issues. The power of the court to reform such a deed on paroi proof, and declare it to have been executed simply as a security for the payment of a debt, is to be exercised with the greatest caution, and only when the alleged grounds of interference are fully made out so as to be clear from" doubt. Campbell v. Dearborn, 109 Mass. 130. As many of the cases state the rule, the evidence must be clear, explicit, unquestioned, and satisfactory. Erwin v. Curtis, 43 Hun, 292, and the cases there cited. We repeat the rule as stated by another tribunal, whose judgment commands the highest respect, (Howland v. Blake, 97 U. S. 626,) viz.: “In each case, the burden rests upon the moving party of overcoming the strong presumption arising from the terms of a written instrument. If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. * * * A deliberate deed or writing are of too much solemnity to be brushed away by loose and inconclusive evidence. ” We are all of the opinion that this presumption is not overcome by satisfactory and convincing evidence, and we fully concur with the trial court that the evidence is not of that strength and character which the law requires in this class of actions, and that it would be unsafe to rely upon such' proofs, and if the plaintiff’s demand should be granted, on the evidence produced by her in the case, titles to land, in this state, would be very insecure and uncertain. It is admitted by the defendant that the grantor, her son, was engaged in erecting works for manufacturing purposes, and on the 22d day of March, 1884, she loaned him the sum of $5,000 to aid him in that enterprise. The deed in question was executed and acknowledged on the 12th day of April the same year. The defendant claims that this deed was executed in satisfaction of that debt. It does not appear that the grantor (the borrower) ever delivered to the grantee any written evidence that he was indebted to her for the money loaned, or that she ever made any claim against the borrower or his estate, on account of such loan. The trial court also found that the defendant paid a fair market price for the premises, and this conclusion is well supported by the evidence. In a case-where there is no considerable difference between the market price of the premises conveyed and the sum which it is claimed that the deed is intended to secure, it is a significant circumstance as indicating that the intention of the parties is manifested by the character of the conveyance. Without the aid of the plaintiff’s own evidence, the plaintiff’s case would be left in so much doubt and uncertainty as to the intention of the parties that her complaint would have been dismissed for failure of proof. It is enough to say that the only direct evidence of an agreement by the defendant, that the transaction be treated as a mortgage, is that of the plaintiff herself. Many of the cases hold that upon the unsupported testimony of an interested witness a decree declaring a deed absolute in terms to be only an instrument for the security of a debt cannot be sustained.- In other cases it is held that where the evidence of a party rests chiefly in the testimony of one witness, and that is disputed by a witness of equal credibility, a case for relief is not made out. The plaintiff does not pretend that she was present, and heard the preliminary negotiations between the parties relative to the making of the loan, and how it was to be secured or repaid, but her evidence is confined to a mere statement made by the defendant to the decedent that she was willing to make the loan to be secured on the premises. The material part of her evidence is very brief, and is to the effect, and nothing more, that some days before the deed was executed, when she and the other parties were at the dinner table, defendant said: “Willy, [the grantor,] I will let you have the $5,000 if you and Bell [the plaintiff] will give me security on this building. I don’t care how long you have the money, and you can have it without interest, but when you pay back the money you can have a release of the property.” On another occasion, before the deed was executed, the same parties being present in the house of the defendant, she said: “You know, Willy, y'ou are to have the money. Arrangements have been made for the same. But you are to give me security on this building.” Accepting this evidence as entirely truthful, it is obvious that the statements made by the defendant on the occasion to which the witness refers do not include all the negotiations had between the parties relative to the loan, and the mode and manner agreed upon for its repayment. To these remarks, evidently casually made, William J. Sid way, the grantor, made no reply, and it cannot be fairly inferred from his silence that he assented to the proposition. The plaintiff makes a very .significant confession,- and which cautions the court not to rely .upon her evidence as disclosing.all the features of the transaction, for she says the defendant and her husband had a considerable business together, which was not transacted in her presence, and- that she knew nothing about-their affairs, as they did not talk business in her presence, and did not want her to know anything about it. It would be very inconsiderate for a court to hold from the evidence of the plaintiff that the terms of the loan, and the mode and manner agreed upon for its repayment, were arranged between the parties upon the occasions mentioned by the witness. If we are not able to say that all the negotiations between the partis s relative to this transaction have been disclosed in this item of evidence, given by an interested witness, then it cannot be said that it has been clearly and satisfactorily established that the deed was intended as a mortgage, and not as an absolute conveyance of the fee of the land. While we cannot entirely push aside the evidence of the servant, who claims to have heard some conversation between the parties relative to this subject, we think it has slight, if any, probative force, as it appears that she has made contradictory statements as to the import of the conversation which she attempted to relate. The plaintiff’s evidence is to be scrutinized and received with great caution, for she is the only party interested in securing the release demanded. The defendant, as a witness in her own behalf, denies that she ever made the statements testified to by the plaintiff. As has already been stated as a general rule, a deed is never reformed into a mortgage on paroi evidence where the same is disputed by other witnesses equally credible.

It is proper, in this connection, to consider another of the plaintiff’s exceptions. The defendant’s evidence, just referred to, was received over the plaintiff’s objection, that she was incompetent as a witness to dispute the plaintiff’s evidence under the provisions of section 829. The defendant was a party to the conversation, and is also interested in the result of this action. But the defendant was a competent witness, within the exception of the statute, to testify on her own behalf, to the same conversation testified to by the plaintiff, who claimed title under and through William J. Sidway. It may be remarked that the evidence of the plaintiff, relative to the conversation between the'defendant and her grantor as to the loan and the character of the conveyance, was not competent, as she claims title in fee to the land through William J. Sidway, her late husband, and can only succeed in this action by showing that the deed, to which she is herself a party, was intended as a mortgage. The defendant claims title through the same source; but as the evidence was received it must be considered competent for the purposes of this appeal. The case of Ensign v. Ensign, 14 N. Y. St. Rep. 181, has been referred to and commented upon as an authority in support of the appellant’s •contention that the evidence was sufficient to justify the court in reforming the deed. In that case we stated the rule in the precise language in which it has been stated in this, citing Erwin v. Curtis, supra, with approval. The majority of the court in that case were of the opinion that the parties to the action, both of whom were sworn as witnesses, substantially agreed in their statements as to the nature and character of the paroi agreement entered into at the time the deed was executed, and sustained the judgment entered upon the report of the referee, who found as a fact that it was the intention of the parties to have the conveyance operate as a security for the money advanced and to be advanced.

The defendant called and examined as a witness Mr. Gorham, who was the general counsel for the grantor, and it is claimed that he was permitted to testify to a confidential communication made to him relative to the object and purpose of executing the deed, in violation of the provisions of section 835 of the Code of Civil Procedure. The substance of the statement made by the grantor to Mr. Gorham, as testified to by him, was that he had had a great deal of money from his mother, and that he had agreed to give her a conveyance of the property, and requested him to prepare the deed. The point of the objection is that this was proving the grantor’s statement that lie was to give her ■a deed absolute in terms, which tended to support the defendant’s contention. We need not, in view of the plaintiff’s position as stated in her complaint, pass upon the question whether this was a privileged communication or not, for it is her position that the deed was to be absolute in terms, but by an arrangement between themselves it should operate only as a mortgage. The •plaintiff does not claim that there was any fraud or mistake in executing the deed in the form in which it was delivered, and relies wholly upon the contemporaneous paroi agreement, that in its operation it should be regarded as a security only. Therefore the evidence which Mr. Gorham was permitted to give was not contradictory in any respect of the position assumed by the plaintiff, and the evidence could not have harmed her case in the least, and the exception should not prevail. All the other exceptions have been considered with attention, and we see no sufficient reason for reversing the judgment. Judgment affirmed, with costs. All concur. 
      
       Code Civil Proc. N. Y. § 829, provides that a party interested man action shall not be examined as a witness in his own behalf against a person deriving his interest or title from a deceased person concerning a transaction or communication between the witness and the deceased person, except where the person so deriving interest or title is examined on" his own behalf.
     