
    The Bowery Savings Bank, Resp’t, v. Elizabeth T. Belt et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    1. Deed—Mort&age.
    D. made a deed of certain premises to S. for $3,100. which deed was recorded, and at the same time S. executed and delivered a contract to D.,
    
      by which he agreed to reconvey'the said premises to her upon payment of $3,100 before a certain date. Reid, that the transaction, between £>. and S. was a conditional sale and not a mortgage.
    2. Same.
    The fact that S. had brought an action to have the deed declared a mortgage does not affect his right to have the instrument adjudged to be a deed, he having misapprehended his legal rights.
    Appeal from order confirming the report of the referee in surplus proceedings.
    
      E. H. P..Squire, for app’lt Purdy; Samuel B. Paul, for app’lts Delabarre et al.; Wm. J. Lacey (W. H. Regan, of counsel), for resp’t Salmon.
   Lawrence, J.

Elizabeth T. Belt, after executing a mortgage to the plaintiff for §27,500, in 1889, and a second mortgage of $4,500 to J. F. Kernochan, and a further mortgage of $2,150 to A. White, conveyed the premises No. 44 West Twenty-Second street to her daughter, Elizabeth M. Delabarre. On September 20, 1890, the defendant Elizabeth M. Delabarre, then the owner of the premises sold in this action, made a deed of the same to said Hamilton H. Salmon for the consideration of $3,100, which deed was recorded on the same day in Liber 2258 of Conveyances, p. 79. At the same time that said deed was made, said Salmon executed and delivered a contract to said Elizabeth M. Delabarre, by which he agreed to reconvey the said premises to her upon the payment of $3,100 on or before January 22, 1891. This contract was recorded two days after the recording of deed in Liber of Conveyances 2308, p. 497. On October 27th said Elizabeth M. Delabarre made a deed of the same premises to the defendant James W. Purdy, Jr., the consideration expressed therein being $1,100. This instrument was recorded in the said registrar’s office December 2, 1890, in Liber 2334 of Conveyances, p. 79. After paying the plaintiff’s claim from the proceeds of the sale under the judgment in this action, and the amounts due to Kernochan and White, there remained a surplus, to all of which, the referee has reported, the defendant Hamilton H. Salmon is entitled. The special term has confirmed that report, and from the order of confirmation this appeal is taken.

It is claimed by the appellant Purdy that the deed to Salmon was a mortgage, and that, as such, it was improperly recorded in the book of conveyances, and that Purdy was a bona fide purchaser without notice, and entitled to the surplus. It is claimed by the appellant Delabarre that the referee should not have ignored the existence of the action brought by Salmon, and that to award him the surplus, until that action had been determined, was error. It was further claimed by her that Salmon’s deed, and the agreement executed simultaneously therewith, constituted a mortgage, and that the two instruments should have been recorded as such. We are of the opinion that the referee was right in the conclusion which he reached. The transaction between the defendant Salmon and' Mrs. Delabarre was a conditional sale. The deed is absolute upon its face, and contains the usual full covenants of warranty. The agreement on the part of Salmon, dated September 20, 1890, is to sell to Mrs. Delabarre, for the sum of $3,100. Her agreement is to purchase for and to pay that sum on January 22, 1891. Salmon agrees, on receiving such payment, to execute and deliver to her a full covenant warranty deed. These provisions in the agreement are inconsistent with the position that the deed and instrument were intended to operate as a mortgage. We have not overlooked the fact that a deed absolute upon its face may be shown by paroi to have been intended by the parties as a mortgage, but the burden of proof in such case is upon the party seeking to establish that the transaction equitably amounted to a mortgage. Fullerton v. McCurdy, 55 N. Y., 637. In our opinion, the parties opposing Salmon’s claim to the surplus in this ease have failed to prove that the relation between him and Delabarre was in reality that of mortgagor and mortgagee. The action brought by Salmon for the purpose of having the deed in question declared a mortgage does not affect his right to have that instrument adjudged to be a deed. A party does not forfeit his legal rights by misapprehending them, Morrison v. Brand, 5 Daly, 42, affirmed 56 N. Y., 657, and, as all the parties whose interests are involved are before the court, it is competent in this proceeding to ascertain the nature and extent of those interests. Bergen v. Carman, 79 N. Y., 146. These views lead to an affirmance of the order below, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.  