Palmer v. Gurnsey

7 Wend. 248

Opinion

By the Court,

Savage, Ch. J.

The only point in this case is, whether the deed and agreement constituted a mortgage. By the statute in force, applicable to this case, when the contract was entered into, it was enacted “ that every deed conveying a real estate, which by any other instrument or writing shall appear to have been intended only as a security in nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” 1 R. L. 373, § 3.

The judge was certainly correct in rejecting parol evidence to gjlew t[je intention of the parties. The intention was to • be ascertained from the written instruments ;■ there was no ambiguity, requiring parol proof. It is evident, from the deed and agreement, that the plaintiffs took the deed merely as a security. Had the conveyance been intended as an absolute parting with all the interest of the grantor, there would have been no necessity for any writing back. It is true there was no right of redemption of the land itself, that was to be sold, but the avails were to belong to the grantor, after paying all incumbrances and expenses. The giving up the note is a circumstance favoring the allegation of a sale, and so is the fact of the grantee’s assuming to pay the mortgage; but these circumstances are not sufficient to counteract the ageement to return the amount of overplus, which clearly shews that it was not the intention of the grantor to part with any more of his interest in the premises conveyed than sufficient to satisfy the mortgages and the amount due the plaintiff.

New trial denied.