
    Boocock v. Phipard et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. Mortgage—What Constitutes.
    The grantor in a deed, after its execution, continued to pay taxes on the land until his death, and declared on different occasions that he had tried to sell the land* but could obtain no offer approaching the price paid by him, and that he had arranged to borrow money on it, and had borrowed the money. There was no other deed or mortgage of the land of record. The basis of the deed was a check given by the grantee to the grantor for a large amount, but the expressed consideration was nominal. The grantor paid the grantee a certain sum, and afterwards withdrew it. The deed was not recorded until two years after execution. The grantee once inquired of the grantor if the taxes were paid, and was told they were. Held-. a mortgage.
    3. Same—Foreclosure—Deficiency—Interest.
    Where a loan is made, and a deed absolute in form is given to secure it, but the loan is not made on the deed, the deed must be foreclosed as a mortgage, but the borrower is liable for interest and deficiency, though S Rev. St. N. Y. (7th Ed.) p. 8195, § 139, provide that no mortgage shall be construed as implying a covenant, for payment of the sum secured, and that where no such covenant is expressed, and there is no bond or other separate instrument, the remedies of the mortgagee' shall be confined to the land.
    Appeal from judgment on report of referee.
    Action by Samuel W. Booeoek against Mary L. Phipard, individually and as executrix of William T. Phipard, deceased, and others, to have a deed given, by decedent to plaintiff declared a mortgage and foreclosed as such. Judgment of foreclosure and sale and for payment of plaintiff’s debt and interest out of the proceeds, and for deficiency, was rendered, and defendants appeal. 3 Bev. St. IT. Y. (7th Ed.) p. 2195, § 139, provide that “no mortgage shall be construed as implying a covenant for the payment of the sum intended to be-secured; and where there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.”
    Argued before Barnard, P. J., and Pratt, J.
    
      B\ J. Worcester and A, G. Shenstone, for appellants. Bergen & Dyhman, for respondent.
   Barnard, P. J.

The proof upon the whole case is sufficient to support the findings that the deed was given as a mortgage. The check for $13,000, which was the basis of the deed, was given on the 21st of July, 1885. The deed is dated the 20th of July, 1885. It was not recorded for two years thereafter. On the 1st of December, 1885, the grantor, Phipard, paid $3,500 to the grantee. On the 19th of January, 1886, the grantor again obtained this sum of $3,500 of Boocock, the grantee. Phipard paid the taxes in 1885,1886, and 1887. He died in May, 1888, before the tax of 1888 was payable. On one occasion Boocock sent a messenger to ask Phipard if the taxes were paid, and he replied that they were. This was after the conveyance, and is entirely inconsistent with an absolute deed given to transfer the title. Phipard is proven to have told his life-long friend Boyd that he had tried to sell the lots described in the deed, and could not get an oiler at all approaching the price he had paid for them. He further on one occasion said “that he had arranged to raise the money on them,-—to borrow the money,” and that “he had borrowed the money. ” Ho other deed of conveyance or mortgage appears on the record but the one to Boocock. The conversation with Boyd was subsequent to the date of the deed in question. The testimony of the plaintiff was excluded under section 829 of the Code, and the trial judge rejected the evidence of the entries in the plaintiff’s books. There is still sufficient evidence to conclude that the deed was a mortgage. The deed does not purport to have been given for $13,000, but expresses a consideration of $10 only. The return of $3,500 is at variance with a deed. The subsequent withdrawal of this sum indicates such circumstances upon the part of Phipard as to make the payment inconvenient. The payment of taxes by the grantor continued for years after the conveyance intended to be absolute, and finally there is an expressed declaration made by the grantor that he had borrowed money on the property which agrees with the circumstances of the case. The inquiry made by Boocock to Phipard as to the payment of the taxes is one of great significance. It can stand solely upon the assumption that the title was in Phipard. It was so assumed by both of the parties. The estate of deceased is liable for any deficiency. The loan existed without the deed and the deed is simply a security for its return with interest. The deed must be foreclosed as a mortgage security is foreclosed, but the plaintiff is entitled to a return of the debt and interest, and the borrower must make good the difference in excess of the sale money of the property pledged for the loan. The defendant is not entitled to have the $3,500 deducted from the $13,000. The case shows an advance of $16,-500, and the $3,500 is taken from this sum. A loan being once established, the inference is clear that the loan' covered the entire balance unpaid. If a debt is admitted in a mortgage, interest and a deficiency judgment will be upheld. Culver v. Sisson, 3 N. Y. 264. The case of Spencer v. Spencer, 95 N. Y. 353, holds that in case of a pre-existing debt, if secured by a mortgage without a covenant to repay, and without a bond; and, in the absence of any evidence to the contrary, it will be assumed that the loan was advanced upon the written contract executed at the time. Here there is proof that the advance is not made upon the writing executed at the time. The deed was absolute, and it was given to secure a loan. The mortgagor was entitled to have it foreclosed as a mortgage. Smidt v. Jackson, 11 Hun, 361. When a deed is given for a debt the debt must be fully paid. Despard v. Walbridge, 15 N. Y. 374. When a deed absolute on its face was decreed a mortgage interest was allowed on the debt. Whittick v. Kane, 1 Paige, 201; Van Buren v. Olmstead, 5 Paige, 10. The judgment should therefore be affirmed, with costs. All concur.  