
    VANDUSEN against WORRELL.
    
      Court of Appeals,
    
    
      January Term, 1867.
    Action. ■—Evidence. —Mortgage.
    An action lies by the receiver of the property of the grantor in a warrantee deed, against the grantee in such deed, to prove that the deed, though absolute in its terms, was in fact a security in the nature of a mortgage.
    In such an action the plaintiff may recover the price for which the grantee has sold the land, deducting the amount due the grantee, and a reasonable compensation for his trouble in effecting a sale.
    Appeal from a judgment.
    This action was brought by Charles- H. Vandusen, as receiver of Philo Haskins, against Daniel Worrell, claiming to recover from the defendant the proceeds of the sale of certain lands, or of the value thereof, with certain deductions, on the ground that the lands were conveyed to the defendant by way of mortgage for the security of a certain debt. The defendant claimed to be the absolute owner, and denied all liability. The facts are sufficiently stated in the opinion of the court. The referee found in favor of the plaintiff; and the supreme court, at general term in the eighth district affirmed his judgment.
    
      P. L. Ely, for the defendant, appellant.
    —As to the erroneous admission, on the part of the referee, of parol evidence tending to contradict or vary the legal import of the deed, cited and commented on the following authorities : Stevens v. Cooper (1 Johns. Ch., 425); Moran v. Hays (Id., 339); Mead v. Lansing (1 Hopk. Ch., 124); Russell v. Kinney (1 Sandf. Ch., 34); Cook v. Eaton (16 
      Barb., 439); Webb v. Rice (6 Hill, 219) ; Sturtevant v. Sturtevant (20 N. Y. 39); 2 Story Eq. Jur., § 1531.
    
      John T. Murray, for the plaintiff, respondent.
    —I. The plaintiff, as receiver, was the proper party to bring the action; the creditor, subsequent to his appointment, not having such power (Seymour v. Wilson, 19 N. Y, 417 ; 15 How. Pr., 355; Edmonston v. McLoud, 19 Barb., 356).
    II. The referee committed no error in admitting evidence in the plaintiff’s behalf (Marks v. Pell, 1 Johns. Ch., 594 ; Strong v. Stewart, Id., 166 ; James v. Johnson, 6 Id., 417 ; Hodges v. Tennessee Marine & Fire Ins. Co., S N. Y. 4 [Seld.], 416 ; Chester v. Bank of Kingston, 16 Id., 336 ; Sturtevant v. Sturtevant, 20 Id., 39).
   Hunt, J.

—On the 17th day of June, 1846, Philo Has-kins, being the owner of about forty-eight acres of land, executed to the defendant and one Joshua Worrell his mortgage upon the same, to secure the payment of two hundred dollars, and accompanied the same by his bond. On the 21st day of January, 1846, Joshua assigned his interest in the bond and mortgage to the defendant. On that day the defendant lent to Haskins a further sum of three hundred dollars, and Haskins and wife executed to him a warranty deed of the forty-eight acres. This deed was given as security for the three hundred dollars then loaned, and for the amount remaining unpaid on the bond and mortgage before mentioned. The defendant and his wife afterward sold the premises to William B. Follett for the sum of fourteen hundred dollars.

This action is brought, asking a judgment that Worrell was a trustee of Haskins for the balance, after deducting the three hundred dollars loaned, the amount due on the bond and mortgage, with a reasonable compensation for the trouble of the defendant, and that he be directed to pay over such balance. The referee found a balance of twelve hundred and twelve dollars to be due to the plaintiff as receiver of Haskins, for which he rendered judgment in Ms favor, and the general term of the eighth district affirmed his judgment. The defendant now appeals to this court.

But a single question is presented for our consideration, to wit: was it competent for the plaintiff to prove that the deed from Haskins to Worrell, although in form an absolute conveyance, was in fact, by the engagement of the parties, a mortgage merely \ This question was decided in favor of the respondent in Hodges v. Tennesee Marine & Fire Ins. Co., 8 N. Y. [4 Seld.], 416), and was again decided by this court in the same manner, in June, 1866, not yet reported, in the case of Loveridge v. Oyer.

Judgment should be affirmed with ten per cent, damages.

PARKER, J.

—The parol evidence admitted by the referee upon the trial, tending to show that the deed from Haskins to the defendant was intended as a mortgage, was properly received (Hodges v. Tennessee Marine & Fire Ins. Co., 8 N. Y. [4 Seld.], 416 ; Sturtevant v. Sturtevant, 20 N. Y, 39).

The referee found the fact that it was intended as a mortgage, upon sufficient evidence. Hence lies conclusion of law that the plaintiff was entitled to recover the money received by defendant upon a sale of the premises, after deducting the sums and interest which it was given to secure, and reasonable charges for effecting the sale, of which the defendant has no right to complain.

Tne judgment appealed from should be affirmed with costs.

All the judges concurred in affirming the judgment.  