Weed v. Stevenson

1 Cl. Ch. 166

• Court: New York Court of Chancery
• Decided: February 15, 1840
• Status: Published

Opinion

The Vice Chancellor.

One ground of demurrer is, that Stevenson and his wife are not necessary parties. This is true. But they are proper though not necessary parties. They might have been safely omitted; but if the complainant had any doubt about the validity of their conveyance, he might very properly have joined them, to set at rest such] doubt. Here is a deed executed by one, and a defeasance executed by the grantee to another other than the grantor. Does this make a proper mortgage ? The statute, Vol. 1, p. 746, Sec. 3, declares that “ every deed conveying real estate which, by "any other instrument in writing, shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.” Here there is no distinction taken between the defeasance being executed to the grantor or to any other person. It is only necessary that the deed and other instrument in writing shall together show that they were intended “ as a security in the nature of a mortgage,” to make it a mortgage. That was the clear intent of this deed and defeasance—so expressed—so treated—so re-cor(je¿—and the complainant is right in now treating ^ as su°h m this bill, and may properly proceed upon it as such. The demurrer must be overruled with costs.