
    Louise Harris, Appellant, v. Minnie F. Hirsch, Individually and as Executrix of and Trustee under the Last Will and Testament of Ferdinand Hirsch, Deceased, and Others, Respondents.
    First Department,
    November 15, 1907.
    Equity — action to have deed declared a mortgage — evidence—burden of proof—adequacy of consideration — leading question.
    Evidence in an action brought to have a deed absolute upon its face declared to be a mortgage examined, and Held, that a finding that the instrument was • given as an absolute conveyance was not against the weight of evidence.
    In such action the burden is upon the plaintiff to show by clear and satisfactory evidence that the deed was intended as a mortgage, as there is a strong pre- . sumption that the instrument expressed the entire contract between the parties.
    Testimony by a real , estate expert that the property was worth $750 if a purchaser could be obtained, but that .purchasers were difficult to find, is insufficient to establish that the consideration of $500 paid for the property was inadequate. . '
    A judgment will not be reversed because a general objection to a leading question, otherwise competent, was sustained, when there is nothing to show that the appellant was misled as to the ground of objection.
    Laushmh and HousnTOK.'JJ., dissented, with opinion. .
    Appeal by the plaintiff, Louise Harris, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of December, 1906, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      J. C. Guggenheimer, for the appellant.
    
      Emanuel Blumenstiel, for the respondents.
   Ingraham, J.:

This action was brought to have a deed, absolute on its face, executed on the Ith of July, 1891, declared to be a mortgage to secure the'sum of $500, to ascertain the amount due upon said mortgage' and to redeem. The court lias found that the conveyance was absolute, executed for a good and valuable consideration, and that the title to the property in fee simple was conveyed to the grantee. The plaintiff insists that this finding is against the weight of. evidence. The trial took place in-1906, about fifteen years after' the execution and delivery of the deed,, and the evidence relied upon to prove the fact that the deed was a mortgage was the witness’ recollections of conversations and admissions of the defendants’ testator, given more than fifteen years after the conversations and admissions took place. The plaintiff was a sister of the defendants’ testator. On the 21st day of October, 1884, the property-in question was conveyed to her, the consideration-being $335. By a conveyance dated the Ith of July, 1891, the plaintiff for the expressed consideration of $500, conveyed the property to the defendants’ testator, who continued in possession of the property, paying all taxes and assessments upon it, down to the 13th of July, 1901, when he died a resident of the county of New York, leaving a last will and testament in which he bequeathed $2,5.00 to the plaintiff. Ho claim, was made by the plaintiff that this conveyance was a mortgage or that the plaintiff had any interest in the property during the life of the defendants’ testator, or until April 5, 1905, almost four years after his death. In the meantime the plaintiff had received the legacy of $2,500 from the estate of the defendants’ testator, and at various times between the execution of this conveyance and the death of the defendants’ testator she had received various legacies, without offering to repay the loan or making any arrangement in relation to the indebtedness.

A sister of the plaintiff testified that she recalled in the spring of 1891 a conversation between the defendants’testator and others with respect to a money transaction between himself and the plaintiff; that there were present their mother, the defendants’ testator and the plaintiff; that the defendants’- testator went abroad that year on the twenty-eighth of May,-and before going he said to the plaintiff, “You need $500;” the plaintiff said, “I do, very badly.” When he said, “Very well, I will lend it to you;” that the plaintiff then said that she had a piece of property in the Bronx which she wished the defendants’ testator to take as security; that he said, “Very well,” . that this property was the property of the plaintiff any time that she had $500 and wished it back, “ and anything it brings, if I should sell it, above $500 is yours; ” that she subsequently heard the defendants’ testator tell his mother that he wanted her to know that this property belonged to the plaintiff and that any time plaintiff had $500 she could have it back ;. that the defendants’ testator at several times stated to the witness that this property belonged to the plaintiff. The $500 was paid to the plaintiff prior to Hay 28,1891; the conveyance of the property to the defendants’ testator was dated the seventh of July, and the testator died on the 13th day of July, 1901, more than ten years thereafter.

Other members of the family testified, to conversations -between the defendants’ testator and his relatives before the deféndants’ testator went to Europe in 1891, and subsequently, in which he stated that he was making a loan to the plaintiff and had accepted this property as security; that the- property belonged to the plaintiff and whenever she could spare $500 she could have it, and that if he sold it at any time, anything that he received above the $500 belonged to the plaintiff. The plaintiff’s son testified that he heard ' the defendants’ testator speak of this property about a year and a half before his death; that at that time he wanted the.witness to ask the plaintiff whether she wanted to sell the property or not; that if she did, he would attend to the sale of it for her; that the defendants’ testator said to' the plaintiff on Christmas day, 1900* that the property was going up considerably, It was also proved, by a clerk in the employ of the defendants’ testator that at the request of the defendants’ testator he obtained the tax bills upon this property and paid the taxes; that on several occasions he shid that the property belonged to the plaintiff and that he was paying the taxes and caking care of the property, because she was unable to handle it herself; that he would like to sell the .property and make some niioney for her. There was evidence that this -property in 1891 was worth “not over $750 if you could.get a purchaser; ” that, there was very little market at that time; “you could find purchasers but not readily;” that the property is now worth about $9,000; that the most marked improvement had occurred within the last two years. It was further proved that the property was assessed for taxation in the year 1891 at $250, which remained without change until 1897, when' it was assessed at $700; in 1899- it was assessed at $1,200 ; in 1900 at $1,500, which continued until 1903,-¿when it was assessed at-$3,500, and in 1905 at $7,000, and at the time of the trial $8,500. It further appeared that- during this entire period the defendants’ testator paid the taxes on the property.

■ - The disposition of this case depends entirely, upon the original arrangement that was made between the plaintiff and the defendants’ testator. The fact that the defendants’ testator intended to give to the plaintiff any profit that was realized upon the final sale of the property, while . evidence bearing upon the original arrangement that wás made,;would not of itself justify a finding that the transaction was in fact a loan and not a conveyance of the property. 1 do not think it -can be said upon this evidence that a .finding would have been’justified that the sum of $500 .was not a fair price for the property at the time it was conveyed to the defendants’testator. The' opinion -of the real estáte expert that it" was worth $750 if he could find a purchaser, but that purchasers of property in this locality were difficult to obtain* would not justify a finding that $500 was not the fair v-alue-of the property.

The trial court, who had the advantage of seeing these witnesses and hearing them testify, had to determine whether recollections of these conversations and admissions many years before the testimony was given and many years before any question was raised as to the ownership of the property, furnished the clear and satisfactory evidence which is required to turn an instrument, absolute on its face, into 'a mortgage for the securing of a lóan of money. The testator is dead, and it is impossible to obtain his version of the transaction.

The rule to be applied in the disposition of such a case is stated in Ensign v. Ensign (120 N. Y. 655) : “ The burden of establishing an oral defeasance to such a deed is-an onerous one resting on whoever' alleges it, and its existence, and also its precise terms, must be established by clear and" conclusive evidence, otherwise the strong presumption that the deed expresses the entire contract between the parties to it is not overcome. A conveyance- of land in fee so executed, acknowledged and recorded is of too great solemnity and of too much iinportance to be set aside or converted into a mere security upon loose or uncertain testimony, and it will not be unless the existence of the alleged oral defeasance is established beyond a reasonable doubt. * * * Whether the evidence in a particular case amounts to proof of the issues tendered is generally a question for the final determination of the court having original jurisdiction to try it, subject to review by the appellate court invested by the statute with power to re-examine' the determination of the issues of fact.” •

Tam not prepared to say that the decision of the trial court that the evidence was not sufficient to justify a finding of the existence of this oral defeasance, considering the nature of the testimony required, was against the weight of evidence. The unsatisfactory character of evidence of oral declarations, and admissions made many years before the testimony is given and before its importance is realised, has been often adverted to. That the defendants’ testator should have, for over ten years, paid the taxes and assessments upon the property and treated it as. his own, without having taken from the plaintiff any obligation for a loan of money, or having receivéd any recognition of' her obligation to repay him the amount ■ that he was constantly called upon to expend to protect the property,-and that she allo wed such a situation to remain without asking for any written recognition of 'her interest in the property, negatives the idea that the transaction was originally .a ,loan for Which the plaintiff wasjiable. At the time, of the death of the testator' any obligation to repay this money had been long barred by the Statute of Limitations. There was. nothing in the relation of the parties which tended to.show that either of them- considered the transaction a loan of money rather than an absolute conveyance of the property, and whatever the intention of the testator as to any profits ultimately realized upon the sale of the property, considering the nature of the testimony, I do not think that it can be said that a finding -that the.transaction originally was not a loan, but' an absolute conveyance of the property, was so clearly against the weight of evidence that we are justified in reversing the judgment, upon that ground.. ’■•...

The only other question that .requires, any consideration is the exception to the ruling of the court sustaining an objection to a question asked the plaintiff’s' son on redirect examinátion. It seems that this son had received a legacy of about $2,000 from his father. The defendants’testator had had charge of this money and he proposed that the son should give that money to the plaintiff to which apparently the son acquiesced. Upon redirect examination, after the son had been fully examined and cross-examined, he was. asked the following questions in relation to th-is transaction : “‘Q. It was merely a transfer of $2,000 from your own account to your mother’s ■account and Hr. Hirsch keeping the money all the time ? [Objected to. Sustained.] Q. Did Hirsch suggest that .your mother use ’any part of that money to pay him ? . [Objected to. Sustained. Plaintiff .excepts.] ” , '

This question was grossly leading and considering the nature óf the inquiry and the fact that the witness was being askéd for declarations of tlie decedent, it would have been most improper to have allowed such a leading question in. which the. counsel- framed the ■alleged declaration, that- was to be testified to, instead of .the witness testifying as to what the deceased actually said. Sustaining the objection to such a question Was not error, and while evidence as to declarations, made by the" defendants’ testator would have been undoubtedly competent,, as the.ruling upon this question was clearly correct and the defendants did not in any way waive the objection to the form of the question^ the court would not be justified in reversing the judgment on account of this exception. The rule in relation to rulings upon general objections is stated in Height v. People (50 N. Y. 392); it was there said that where the objection was general, stating no grounds, and the decision was with the objector, the objection is sufficiently stated, and error does not lie for rejecting the evidence, as the opposite counsel has a right to have the objections stated. If he does not call for them he is not misled, and may be supposed to understand them. But where the grounds of objection are stated and the true grounds are suppressed, he may be misled; and in a case like the one at bar, where the true ground, if stated, might have been obviated, that objection will be deemed whived.” . Here a plainly improper question was asked. A general objection to it was taken, which the court sustained. There is nothing to show that • the plaintiff was at all misled as to the ground of objection, and he then dropped the subject, asking no further questions, and failed to ask that the ground of the objection be stated. In such case it would be clearly improper to reverse the judgment, as the ruling as it stood was correct, and it does not appear in any way. that the plaintiff was misled or the defendants waived the real objection to the question.

The finding Of the trial court being sustained by the evidence and there being no error in the record, it follows that the judgment appealed from must be affirmed, with costs.

Patterson, P. J., and Clarke, J., concnrred; Laughlin and Houghton, JJ., dissented.

Laughlin, J.

(dissenting):

I am of the opinion that the court erred in sustaining the general objections to the second question propounded to the plaintiff’s son on redirect examination, set forth in the prevailing opinion. The question as to whether Hr. Hirsch suggested that the witness’ mother use, any part of the money to pay him was quite leading, but the objection was not upon that ground, and had it been it could have been obviated by asking for the conversation between the witness and Hr. Hirsch, which would have been clearly competent. If Hirsch, in the conversation, said anything on the subje^t referred, to in the question, it would have. been relevant and material. In Turner v. City of Newburgh (109 N. Y. 301).the riile is stated, and authorities .thertefór cited; that it is.not error to overrule a general objection unless there be some grounds of objection to the evidence which could not have been obviated, had they been specified, or unless the evidence in its essential nature be' incompetent, and the court say: “ The reason for the rule is, that if the ground had been stated the form of the question might have been changed, Or the counsel might have conceded the incompetency' of the: evidence and have withdrawn the question.” The samé rule was announced in Murphy v. People (63 N. Y. 590, 594), where in a capital case parol evidence was received of the contents of plead- • ings over a general objection, and the court say: “If objection had been taken to the mode óf proving .the facts, other- proof might have been given and the objection have been obviated. In the absence of an objection of this kind, it must be assumed that the. question intended to be raised by the objection made was. as to the competency of proof of the fact 'to which the question related, and not to. the mode of proving it.” I understand that Where a general objection .only is interposed, it is not discretionary with the court whether to receive the evidence in accordance with the rule in Turner v. City of Newburgh and Murphy v. People (supra) or to sustain the objection and exclude i't upon the theory that the question is leading, although the evidence called for may be relevant and material. . If it be competent for the .court in those circumstances to receive the evidence, I think it-is -errop for the'court to exclude it where the question is objectionable only as to form and.the evidence is relevant,-, and it has been so held in numerous cases. (Abenheim v. Samuel, 16 N. Y. St. Repr. 907; Gerry v. Siebrecht, 84 N. Y. Supp. 250.) As this evidence was both relevant and. material, it cannot be said that its exclusion was not prejudicial to the appellant. I, therefore, vote for reversal of the judgment. .

Houghton, J., concurred.

Judgment affirmed, with costs.  