FOURTH DEPARTMENT, APRIL TERM, 1893.

1875, and was again about to fail. Concededly, the block needed repairs or improvements. One of the plaintiff's witnesses testifies that in one of the interviews with Lynch, Barton told Lynch that he had tried to raise money by mortgage, but did not succeed. If repairs were needed, and money could not be raised by mortgage, it reflects somewhat not only on the value of the property, but of the rental. We think the evidence justifies the finding made by the court below that in the latter part of the year 1878, and to May, 1879, the receipts for rents and use of the property were not equal to the expenses for interest on mortgages, taxes, insurance, water rents and repairs.

Inadequacy of price in cases of this kind is always a circumstance to be considered (1 Story Eq. $$ 245, 246; 1 Jones on Mort. § 329; Holmes v. Grant, 8 Paige, 243), and the weight to be given to it depends upon the degree of inadequacy. If in the present case the market value of the property at the time of the deed did not substantially exceed the consideration, the element of inadequacy ceases to be of any practical importance.

There are some other circumstances that may be briefly adverted to. It will be observed that the transfer by Crawford to Lynch was on 20th of April, 1879, while the deed was not given till May 9, 1879. No other debt of the firm was purchased by Lynch or compromised by him, The deed was drawn by Lynch and sent to Barton on May 6, 1879. On May 8, 1879, Lynch wrote to Mr. Barton to return the deed and that he didn't want it executed. Instead of doing this Barton and his wife executed the deed and sent it to Lynch. Barton in his evidence testifies that before the date of the deed propositions as to the block had been exchanged between him or his wife and Lynch, but that nothing definite had been concluded upon. If that be so, it may be argued with some force that the giving of the deed was entirely separate from any agreement for the compromise of debts.

A part of the agreement between plaintiff and Lynch, as claimed by plaintiff, was that Lynch should indorse for her, upon her continuing the business. Still, very soon after she commences business, and on the 13th of June, 1879, she gives to Lynch a mortgage of $10,000 upon her house and lot upon which the $8,000 mortgage HUN-VOL. LXIX.

2

FOURTH DEPARTMENT, APRIL TERM, 1893.

above referred to had been given, and also upon other real estate owned by her, and this was as collateral security to Lynch for all money he might advance to her and for any notes he had or might have against her or might indorse for her benefit. This mortgage was recorded July 3, 1879. Lynch thereupon indorsed for her benefit in her business or helped her get credit to more or less extent until August, 1885, when he declined to indorse farther and demanded payment of the $5,000 note given by J. Barton & Son, and for which he held the $8,000 mortgage. Upon this note being paid, Lynch upon the 18th of August, 1885, canceled both mortgages. It is claimed that the giving of the $10,000 mortgage was inconsistent with the claim of plaintiff that the deed was given partially for the same purpose. It apparently has some force in that direction.

At the time of the deed there was no debt in existence from plaintiff to Lynch, nor was she liable upon the bonds given with the savings banks mortagages. She did not become liable to pay to Lynch any of the moneys which he might expend upon the buildings. If there was a loss, she was not liable. But, as she claims, she had an option, for an indefinite period in the future, to call for an accounting and redemption. The defendants immediately took full possession, plaintiff becoming for a time a tenant, and after she left friendly relations seemed to have continued between the parties until 1885. In the meantime, the defendants expended largely for improvements, far more, it is claimed, than a mortgagee in possession would be likely to do, and after the fire in 1888 they rebuilt at an expense of $100,000 and upwards.

as

The circumstance that the defendants, after receiving the deed, procured the foreclosure of the mortgages is not necessarily inconsistent with their claim of absolute ownership. The atmosphere about the mortgage under which plaintiff claimed title was not entirely clear. The plaintiff when she took it knew, she herself testifies, that her husband had got to fail. The manner in which the block had been managed might give opportunity for a question as to who was the real owner. The withdrawal of the wife from the firm was only about a year previous. It was certainly discreet to perfect title before making costly permanent improvements.

The plaintiff claims that as upon the giving of the deed she obtained nothing over and above the incumbrances and taxes, she would not

FOURTH DEPARTMENT, APRIL TERM, 1893.

be likely to make an absolute conveyance. Upon the other hand, it is said that the management by the plaintiff and her family was not a success; none of them had means or ability to properly carry it or, and, therefore, the only option plaintiff had was either to allow it to be sold on foreclosure of the mortgages, or make the conveyance to the defendants, and that the fact that under the circumstances then existing she and her husband chose to convey to defendants is not inconsistent with the absolute conveyance. The defendants were business men, and it is urged that they would not be likely to take a defeasible conveyance, running all the risk of large expenditures and liable to be prevented from enjoying the profits.

The evidence required to show that a deed absolute in form was intended to be a mortgage, must be clear, unequivocal and convincing. (Cadman v. Peter, 118 U. S. 73; Erwin v. Curtis, 43 Hun, 292; 112 N. Y. 660.) In Ensign v. Ensign (120 N. Y. 655), it is said that the existence of an oral defeasance must be established

beyond a reasonable doubt. In Lance's Appeal (112 Penn. St. 467), it is said that "to convert a deed, absolute on its face, into a mortgage by parol testimony, such testimony must be clear and specific, of a character such as will leave in the mind of a chancellor no hesitation or doubt, and, failing this, the effort to impeach the legal character of the deed must be regarded as abortive." The testimony must be entirely plain and convincing beyond reasonable controversy. HUNT, J., in Howland v. Blake (97 U. S. 626). The fact that the grantor may have understood the transaction to be a mortgage is not alone sufficient to prove it to be so, in the absence of fraud or mistake. (1 Jones on Mort. § 335.)

In view of the strict rule of evidence applicable to such cases, and of the fact that in some features of the case the credibility of witnesses was at issue, which was a matter that could be dealt with by the trial court better than by this court, we fail to find any sufficient reason for interfering with the finding that the deed in question was executed and delivered with intent to convey to the defendants an absolute estate in fee. There are no circumstances in the case so decisive in favor of plaintiff's theory as to require us to overturn the decision of the trial court.

If the deed at its execution was not intended as a mortgage, then, within the authority of Sturtevant v. Sturtevant (20 N. Y. 39), it

FOURTH DEPARTMENT, APRIL TERM, 1893.

would not be competent for plaintiff to show by parol that the deed was in fact, in trust for her benefit.

Our attention is called to some exceptions to rulings upon evidence. Error is claimed in the admission of certain declarations of Joseph Barton. There was evidence that the management and control of the block while the plaintiff held the title was left by her entirely with her husband, and that he had full charge and management of her business then and, afterward until she failed, and that he was in fact her general agent. Evidence was received of his declarations as to the block in the negotiations that led up to the deed, and of the interviews between him and Lynch with reference to indorsements for plaintiff in the business after the deed, and in fixing the rent of the store to be used in plaintiff's business, and as to leasing some portion of the block before the deed. The declarations of Barton, in transactions within the scope of would bind the plaintiff. (Story on Agency, § 134.) principle, no material error is apparent.

his authority,

Within this

There are no other questions that call for special consideration. It follows that the judgment should be affirmed.

HARDIN, P. J. and MARTIN, J., concurred.

Judgment affirmed, with costs.

ELIZA MAHANEY, Respondent, v. MUTTAL RESERVE FUnd Life ASSOCIATION, Appellant.

Life insurance-age of the insured — weight of evidence.

A verdict in favor of the plaintiff, in an action brought against an assessment life insurance association to recover upon a certificate of membership issued to the mother of the plaintiff, and in which the plaintiff was named as the beneficiary, Held, to be against the weight of evidence upon the material and disputed question of the deceased member's age, in view of the necessarily uncertain and inconclusive character of opinion evidence given on behalf of the plaintiff on the subject of age, and in view of evidence produced in opposition thereto furnished by statements of the member in applications for United States pensions made by her, by English records of the registry of births of the member's children, by the date of the marriage of one of the member's children and the age of the child at the time, and by a declaration of the plaintiff as to her mother's age in an application made by the plaintiff for membership in a

FOURTH DEPARTMENT, APRIL TERM, 1893.

life insurance association, all of which tended to show that the age of the deceased member was from ten to twenty years greater than that stated by her in her application for membership.

APPEAL by the defendant, Mutual Reserve Fund Life Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Oswego county on the 5th day of February, 1892, upon a verdict rendered at the Oswego Circuit, and from an order dated and entered in said clerk's office on the 27th day of January, 1892, denying the defendant's motion for a new trial made upon the minutes, and also from an order of like date granting an extra allowance of costs to the plaintiff.

The action is upon a certificate of membership, issued by the defendant to Catharine Mahaney, the mother of the plaintiff, on the 9th of June, 1885, in and by which it was declared that within ninety days after the receipt of satisfactory evidence of the death of the member, there should be payable to the plaintiff, if she was then alive, otherwise to the legal representatives of the member, the sum of $1,000 from the death fund of the association, or from any moneys that should be realized to that fund from the next assessment to be made as therein stated. Catharine Mahaney died on the 8th of April, 1890, and the proofs of death were furnished to the defendant on the 23d of April, 1890.

The defenses relied on are, first, that there has been a breach of a warranty in the application for membership, that the applicant was born November 10, 1834, and, second, that there was fraud in making the statement as to the age of the applicant.

W. H. Kenyon, for the appellant.

Whitney & Bulger and J. B. Higgins, for the respondent. MERWIN, J.:

In the application of Catharine Mahaney for membership in the defendant, it was stated that she was born on the 10th day of November, 1834, in the county of Waterford, Ireland, and that her age at next birthday, being November 10, 1885, was fifty-one years. The court charged the jury that if the age of the applicant was more than as stated, the plaintiff could not recover. The jury, therefore, in finding for plaintiff, in effect found that the age was correctly stated. The main point presented by the appellant upon this appeal is that such finding is against the weight of evidence.