Barrett v. Carter
New York Supreme Court
Appeal from a judgment entered on a referee’s report in favor of the defendants. The action was brought to have a certain bill of sale, executed by the plaintiff to William Carter, deceased, and a lease in perpetuity, executed by Ebenezer Wiswall, to said Carter, in his lifetime, declared a mortgage, and to obtain a conveyance from the defendant to the plaintiff, of the house and lot covered by said lease and bill of sale, on the payment by the plaintiff of such sum as…
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Appeal from a judgment entered on a referee’s report in favor of the defendants. The action was brought to have a certain bill of sale, executed by the plaintiff to William Carter, deceased, and a lease in perpetuity, executed by Ebenezer Wiswall, to said Carter, in his lifetime, declared a mortgage, and to obtain a conveyance from the defendant to the plaintiff, of the house and lot covered by said lease and bill of sale, on the payment by the plaintiff of such sum as should be found due the estate of Carter on an accounting. It appeared upon the trial that the plaintiff went into possession…
1Opinion of the Court
By the Court —
Miller, P. J.
It is well settled that in a court of equity it may be shown by paroi evidence that a deed or instrument absolute on its face, was at the time of its execution intended by the parties to it as a mortgage. (Hodges v. Tenn. Marine Fire Ins. Co., 4 Seld., 416 ; Despart v. Walbridge, 15 N. Y., 374; Sturtevant v. Sturtevant, 20 N. Y., 39; Van Deusen v. Worrell, 3 Keyes, 311; Burney v. Wellman, 42 Barb., 390; Will Eq. Jur., 429.) This rule, however, only prevails to the extent of showing that at the time of the execution and delivery of a deed or assignment absolute upon…
2Cases cited8 opinions
- Despard v. . WalbridgeNew York Court of Appeals · 1857
- Nesbit v. . LockmanNew York Court of Appeals · 1866
- Sturtevant v. . SturtevantNew York Court of Appeals · 1859
- McBurney v. WellmanNew York Supreme Court · 1864
- Garrison v. AkinNew York Supreme Court · 1847
3 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- Howell v. Van SiclenNew York Supreme Court · 1875