Reich v. La Bau Dyer

72 N.E. 922, 180 N.Y. 107, 18 Bedell 107, 1904 N.Y. LEXIS 1302

• Court: New York Court of Appeals
• Decided: December 30, 1904
• Status: Published

Opinions

Haight, J.

This action was brought to recover a balance due upon the purchase price of a farm consisting of one hundred acres of land, situated at Brentwood, Long Island. The facts established by the verdict of the jury are substantially as follows:

The plaintiff was the owner and resided upon the farm in question. She applied to the defendants’ testatrix in her lifetime for a loan of $3,133 and offered to give' her mortgage upon the farm to secure its repayment. Thereupon negotiations took place between the plaintiff, her husbaand and Mrs. La Bau with reference to the purchase of the farm by Mrs. La Bau, resulting in an agreement, fixing the purchase price at $40,000, the advancing by Mrs. La Bau to the plaintiff of $3,133, and the giving by the plaintiff to Mrs. La Bau a full covenant deed of the premises under an oral agreement that at any time within a year Mrs. La Bau may elect to pay the balance of the purchase price, at a time to be named by her, and thereby retain the title to the premises. Mrs. La Bau, in answer to the plaintiff’s offer to give her a mortgage, stated that “ she preferred to have a deed so that when she made up her mind that she would keep the property that there is no further loss of time and she will then state the time of paympnt.” Subsequently Mrs. La Bau advertised for a tenant, arranging with the plaintiff’s husband to show the property to persons desiring to rent, and soon thereafter she leased the premises to one Horace I. Moyer, the lease bearing date the 28th day of March, 1895, running for a period of five years from the first day of April thereafter and containing a provision to the effect that the lessee is granted an option to purchase the premises for the sum of $45,000 on the first day of April, 1897. Thereupon she wrote the plaintiff to the effect that she had leased the .farm and that the tenant was desirous of leasing the personal property on the farm and that she thereby gave notice that she would keep the property conveyed to her, thus exercising her option, and that she would pay therefor on or before March first, 1897. She also requested the plaintiff to release the property and give her a list of the horses, cows, furniture and other chattels upon the place with the prices therefor. To this the plaintiff replied, under date ' of Match 30, 1895, in which she inclosed duplicate lists of the personal property upon the premises, giving the prices therefor, amounting in the aggregate to $2,772, which amount deducted from the $3,133 would leave a balance of $361 to be credited upon the purchase price of the farm, reducing the same to $39,639, which, under the letter of Mrs. La Ban, was to be paid on the first day of March, 1897. Upon the receipt of the letter Mrs. La Bau announced to the attorney of the plaintiff that it was “ entirely satisfactory.” Thereafter, and on the first day of April the plaintiff surrendered the possession of the farm and of the personal property thereon to the tenant. The jury found in favor of the plaintiff for the sum of $54,523.45, being the balance due upon the purchase price with interest thereon to the date of the verdict. From the judgment entered thereon an appeal was taken to the Appellate Division, which court, as we have seen, has reversed upon the law and the facts and granted a new trial.

The first question that arises has reference to our jurisdiction to review the action of the Appellate Division in granting a new trial upon the facts. This court has repeatedly refused to entertain jurisdiction of orders of the Appellate Division reversing judgments and granting new trials where the judgments have been entered upon verdicts and motions for new trials have been made and denied, unless the court in its orders, in effect, certified that these reversals were upon the law only and that it had' examined the facts and found no reason for interfering with the verdict, upon the ground that it was against the weight of evidence. (Harris v. Burdett, 73 N. Y. 136; Chapman v. Comstock, 134 N. Y. 509, 512 ; Mickee v. Wood Mowing & R. M. Co., 144 N. Y. 613 ; Canavan v. Stuyvesant, 154 n. Y. 84; Henavie v. N. Y. C. & H. R. R. R. Co., 154 N. Y. 278 ; Schoen v. Wagner, 156 N. Y. 697; Judson v. Central Vt. R. R. Co., 158 N. Y. 597 ; Livingston v. City of Albany, 161 N. Y. 602; Schryer v. Fenton, 162 N. Y. 444; Albring v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 287; S. C., 174 N. Y. 179.) It, consequently, follows that we have no power to review the order in ques tion, unless the plaintiff upon the evidence in the case was entitled, as a matter of law, to a direction of a verdict in her favor. (Otten v. Manhattan Ry. Co., 150 N. Y. 395, 400; Hirshfeld v. Fitzgerald, 157 N. Y. 166 ; Griggs v. Day, 158 N. Y. 1, 9 ; Westerfield v. Rogers, 174 N. Y. 230, 239.) It is now contended on behalf of the appellant that the Appellate Division had no power to reverse upon the facts for the reason that the plaintiff was entitled, as a matter of law, to a direction of a verdict in her favor. We have examined the record for the purpose of determining whether this contention can be sustained. It must be conceded that there is but little, if any, controversy with reference to the facts testified to by plaintiff’s witnesses. It may be that an inference may be drawn from the testimony of one or two of the defendants’ witnesses that would be, to some extent, in conflict with the claim of the plaintiff, but it is contended that these inferences would not amount to more than a scintilla of evidence. But some of the essential facts upon which the plaintiff’s claim is based have to be established by the oral testimony of witnesses so nearly connected with the plaintiff in relationship .and in business as to involve their credibility. Mrs. La Bau died before this action was brought, and, consequently, could not be heard in defense of her estate, and under the circumstances we are of the opinion that the question became one of fact for the jury, and not for the trial court to dispose of. This disposition of the case was acquiesced in by the plaintiff upon the trial, for she did not ask for a direction of a verdict or take any exception to the submission of the case to the jury. We, therefore, conclude that we have no jurisdiction to review the order appealed from, so far as this branch of the case is concerned, and, therefore, • that the appeal must be dismissed.

Inasmuch as the plaintiff has been granted a new trial we have thought it wise to consider the question as to whether the deed given by the plaintiff to Mrs. La Ban was a mortgage. We think it was a question of fact for the jury. • The deed was absolute upon its face, containing full covenants in the usual form. Mrs. La Bau contemplated the purchase of the farm. The purchase price was fixed and agreed upon, and she made an advance to the plaintiff of §3,133, to he applied upon the purchase price unless she should elect not to purchase the farm within one year from the date of the' deed. The money so advanced was only to be treated as a loan in case she concluded not to purchase. The plaintiff had applied for a loan and had offered to give a mortgage, but this Mrs. La Bau declined to take, stating, as we have seen, that she preferred to have a deed, so that in the event of her concluding to keep the property no further conveyance would be necessary. A deed can be changed into a mortgage only when it is apparent that the parties intended that such should be its effect. In this case the jury might have found that the intention of the parties ivas, that it was a deed, was accepted as such and that the possession of the premises was surrendered to Mrs. La Bau or her tenant thereunder. We think, therefore, that the authorities relied upon by the learned Appellate Division to the effect that an instrument once becoming a mortgage always remains a mortgage have no application and that its determination with reference to the deed in question cannot be sustained.

The appeal should be dismissed, with costs.