
    Walter H. C. Ensign, Respondent, v. Daniel P. Ensign, Appellant.
    "While the general rule is that where a deed, absolute on its face, is claimed to have been intended simply as a mortgage, the burden of establishing an oral defeasance and its precise terms, by clear and conclusive evidence, rests upon the party claiming it; whether the evidence in a particular case is sufficient is, generally, for the determination of the court of original jurisdiction, subject to review by the appellate court having jurisdiction to re-examine questions of fact; if that court affirms, this court may not reverse if there is any evidence which tends to sustain the findings of fact on which the judgment rests.
    (Argued May 2, 1890;
    decided June 3, 1890.)
    Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 1, 1888, which modified and affirmed as modified a judgment in favor of plaintiff entered upon the report of a referee.
    
      The following is the opinion in full:
    “ This action was begun February 19, 1886, to have a deed, absolute on its face, executed a'nd delivered by the plaintiff to the defendant October 24,1884, and recorded January 2,1885, adjudged to be a mortgage. The rule that such a deed may, in an action between the parties to it, be shown by oral evidence, to have been given and received to secure the payment of a debt, is firmly established in this state. (Despard v. Walbridge, 15 N. Y. 374; Horn v. Keteltas, 96 id. 605 ; Fullerton v. McCurdy, 55 id. 637; Peugh v. Davis, 96 U. S. 332; Jones on Mort. chap. 8; 3 Pom. Eq. Juris. § 1196; 2 Whart. on Ev. § 1032.) 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 importance 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. (Todd v. Campbell, 32 Penn. St. 250; DeFrance v. DeFrance, 34 id. 385 ; Null v. Fries, 110 id. 521; Howland v. Blake, 97 U. S. 624; Erwin, v. Curtis, 43 Hun, 292; 112 N. Y. 660; Russell v. Southard, 12 How. [U. S.] 139 ; 3 Reed Stat. Fr. § 1042; 1 Jones on Mort. § 335 ; 2 Whart. on Ev. §§ 1032, 1033.) :
    “ The defendant insists that the plaintiff failed to establish his case within this rule of evidence, and that this court should so hold, as a matter of law. It is impossible to formulate' an inflexible rule of law for the determination in ail cases of the relation between evidence and proof; but each case must be decided, in the light of general rules, on its own facts and circumstances. 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. The referee’s determination of the issue having been affirmed by the General Term, this court cannot reverse if there is any evidence tending to sustain the finding of the fact on which the judgment rests.
    “ The plaintiff’s case does not rest solely on his uncorroborated testimony, contradicted by the defendant and the deed, but is supported by facts of considerable probative force, the existence of which is not denied. The defendant’s admission that he proposed to take the farm, pay plaintiff’s then existing debts, cafe for .his father, and, when the farm was sold, give to the plaintiff any surplus, tends strongly to support the plaintiff’s evidence.
    “Applying the rules above stated to the evidence in this case, which may be a border one, we- cannot hold that the decision of the issue of fact by the trial court is without any evidence tending to sustain it.
    ■ “ It is not necessary for the decision of this appeal to determine whether the plaintiff, prior to his conveyance to the defendant, had an estate in fee simple or a lesser estate. It is agreed that he had a legal estate, and whatever he had he conveyed to the defendant, and the sole question upon which this decision turned, was whether the deed was given and received as security or as an absolute transfer of all of the plaintiff’s interest in the land.
    “ None Of the rulings admitting or rejecting evidence are challenged in this court.
    “ The judgment should be affirmed, with costs.”
    
      O. W. Johnson and Edward, P. Gould for appellant.
    
      John G. Record for respondent.
   Follett, Ch. J.,

reads for affirmance.

All concur except Bbadley and Haight, JJ., not sitting.

Judgment affirmed.  