
    Bornkamp v. Boehm et al.
    
      (Supreme Court, General Term, First Department.
    
    November 23,1888.)
    ^Equity—Reformation of Instrument—Mortgaqes—Deeds Absolute.
    In an action to set aside and reíorm a deed, and have it declared a mortgage, the evidence was that defendant, as security for a painting contract, held a mortgage on four houses, including the house and lot covered by the deed; that it was proposed to give the deed as a substitute for the mortgages, but a lawyer advised against that course, and thereupon it was concluded to make an actual sale and conveyance of the house and lot, in consideration of which defendant should relinquish the mortgage, complete the painting contract, furnish the house conveyed, and do certain other work on the houses; that defendant also agreed that he would sell and reconvey the premises to plaintiff within six months, on payment of a sum equal to all he should be entitled to under his painting contract, and his outlay in completing the house. Plaintiff and his brother, who was interested in the transaction, testified that they did not understand the paper read to them by the lawyer. Held, that there was nothing unfair or unconscionable in thó transaction, and that the complaint was properly dismissed.
    Appeal from special term, New York county.
    This action was brought by Henry Bornkamp against Gustav Boehm and Sophia Boehm, for the purpose of setting aside and reforming a deed made by plaintiff to defendants, and to have the same declared as intended for security merely, and to set aside the conveyance of the premises, made by defendant Gustav to defendant Sophia, as a fraud on plaintiff. The court dismissed tlier complaint, and plaintiff appeals.
    Argued before Van Brunt, P. J., and Bartlett and Macombeb, JJ.
    
      Henry Wehle, for appellant. Frederick A. Botty, for respondent.
   Macomber, J.

The justice presiding at the trial of this action permitted the evidence to take the widest possible range within the rules, so as to enable the plaintiff, if possible, to establish the ultimate fact of his contention, namely, that the instrument in question, though upon its face an absolute-conveyance, was intended in fact to be a security only for the indebtedness which was owing by the plaintiff to the defendant Gustav Boehm. The defendant Gustav Boehm, in order to secure payment to him under a painting contract, held a mortgage upon the four houses, including the house and lot-covered by the deed. The real party in interest in the contract seems to have-been, not the plaintiff, but one Charles Bornkamp, uncle of the plaintiff. It is disclosed by the evidence that the original proposition was that the deed should be given as a substituted security for the mortgage, but that, upon consulting with a lawyer, it was pointed out that such a course would be objectionable, and thereupon it was concluded that there should be an actual sale, by conveyance, of the one house, in consideration of which the defendant Gustav Boehm should not only relinquish the mortgage on the four houses, but should also complete the painting work of all the houses, and that he-would himself furnish the particular house conveyed, the carpenter work, and all other incomplete details, and pay or allow to the plaintiff an amount which he had paid to one Pulvermacher. That this is shown to be the agreement of the parties, and was a complete transaction, though conditional, is shown by the further fact that the defendant Gustav Boehm also agreed, at the same-time, that, within six months, he would sell and reconvey to the plaintiff the-premises covered by the deed, upon the payment of a sum equal to all the defendant should be entitled to upon his contract for painting, and for his outlay in completing the house conveyed. As is pointed out by the learned judge-at the trial, if the agreement referring to a resale was merely one of defeasance, and the whole transaction was only an awkward way of substituting" one security for another, the form it took, under advice of counsel, could not change the real nature of the transaction, if the intention of the parties should still remain that the deed should be a security only. But the clear and positive evidence in behalf of the defendants cannot be said to be overcome by the testimony of Charles and Henry Bornkamp, to the effect that they did not-understand the contents of the paper which was read to them at the lawyer’s-office. There was nothing unfair or unconscionable in the transaction, nor was there any act on the part of the secured creditor which can be deemed to-be an advantage taken by him of his debtor. The judgment should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.  