Strong v. Stewart
New York Court of Chancery
BILL to redeem mortgaged premises. The defendant set np an absolute sale, by an assignment, absolute in terms, of the right of Mitchell in the land, and denied the fact of a loan. But the defendant, at the same time, admitted in his answer, that after the assignment was executed, he gave Mitchell, at his request, time to return the money, and take back the assignment.
Read the full summary
BILL to redeem mortgaged premises. The defendant set np an absolute sale, by an assignment, absolute in terms, of the right of Mitchell in the land, and denied the fact of a loan. But the defendant, at the same time, admitted in his answer, that after the assignment was executed, he gave Mitchell, at his request, time to return the money, and take back the assignment. Parol proof was taken, which established, conclusively, the fact of a loan, and not a purchase and sale; and that the assignment was made, given and received, by way of security for a loan.
1Opinion of the Court
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 *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…
2Cited by18 opinions
- Patchin v. PierceNew York Supreme Court · 1834
- Glover v. PaynNew York Supreme Court · 1838
- Holmes v. GrantNew York Court of Chancery · 1840
- Emerson v. AtwaterMichigan Supreme Court · 1859
- Rogan v. WalkerWisconsin Supreme Court · 1853
13 more not listed; retrieve them via the Exa API.