Strong v. Stewart

New York Court of Chancery

Strong v. Stewart

4 Johns. Ch. 167, 1819 N.Y. LEXIS 193, 1819 N.Y. Misc. LEXIS 42

CourtNew York Court of Chancery

DecidedOctober 18, 1819

StatusPublished

Cited by18 cases

This text of 4 Johns. Ch. 167 (Strong v. Stewart) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Strong v. Stewart, 4 Johns. Ch. 167, 1819 N.Y. LEXIS 193, 1819 N.Y. Misc. LEXIS 42 (N.Y. 1819).

Pincite

Opinion

The Chancellor.

On the strength of the authorities, and on the proof of the loan, and of the fraud, on the part of the defendant, in attempting to convert a mortgage into an absolute sale, I shall decree an existing right in the [168]*168plaintiffs to redeem. The Cases of Cotterell v. Purchase, (Cases temp. Talbot, 61.) Maxwell v. Mountacute, (Prec. in Chancery, 526.) Washburn v. Merrills, (1 Day’s Cases in Error, 139.) and the acknowledged doctrine, in 2 Atk. 99. 258. 3 Atk. 389; and 1 Powell on Mortg. 104. (4th London edit.) are sufficient to show, that parol evidence is admissible in such cases, to prove that a mortgage was intended, and not an absolute sale, and that the party had fraudulently perverted the loan into a sale. In this case, the admissions in the answer were sufficient to presume a mortgage, against the absolute terms of the assignment.

Decree accordingly.

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The Chancellor.

On the strength of the authorities, and on the proof of the loan, and of the fraud, on the part of the defendant, in attempting to convert a mortgage into an absolute sale, I shall decree an existing right in the [168]*168plaintiffs to redeem. The Cases of Cotterell v. Purchase, (Cases temp. Talbot, 61.) Maxwell v. Mountacute, (Prec. in Chancery, 526.) Washburn v. Merrills, (1 Day’s Cases in Error, 139.) and the acknowledged doctrine, in 2 Atk. 99. 258. 3 Atk. 389; and 1 Powell on Mortg. 104. (4th London edit.) are sufficient to show, that parol evidence is admissible in such cases, to prove that a mortgage was intended, and not an absolute sale, and that the party had fraudulently perverted the loan into a sale. In this case, the admissions in the answer were sufficient to presume a mortgage, against the absolute terms of the assignment.

Decree accordingly.

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Bluebook (online)

4 Johns. Ch. 167, 1819 N.Y. LEXIS 193, 1819 N.Y. Misc. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strong-v-stewart-nychanct-1819.

Opinion

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