Frear v. Sweet

• Decision Date: 25 February 1890
• Citation: 118 N.Y. 454,23 N.E. 910
• Parties: FREAR v. SWEET et al.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 454

23 N.E. 910

FREAR

v.SWEET et al.¹

Court of Appeals of New York, Second Division.

Feb. 25, 1890.

Appeal from supreme court, general term, second department.

This action was brought by plaintiff to foreclose a mortgage executed by defendant Franklin Sweet to Francis Creed, bearing date May 1, 1873, to secure the payment of $2,000 in five years thereafter; said sum being a part of the sum of $2,500, the purchase price of a farm or a lot of land at that time conveyed by said Creed to said Sweet. The mortgage was duly recorded in the proper office on the 7th day of May following, and was assigned to and became the property of the plaintiff, through several mesne assignments, on the 9th of April, 1881; and the same was recorded in the proper office on the 5th day of May, 1886. The intermediate assignments were duly recorded directly after they were, respectively, executed. At the time of the giving of the deed and mortgage between Creed and Franklin Sweet, the latter executed a deed of five acres of the land described in the deed and mortgage to the defendant Clement Sweet, and said Creed released the same from the lien of said mortgage; the said Clement at the same time paying therefor $150, the entire price which was included in, and went to make up a part of, the $500 paid to Creed towards the purchase price, $2,500, of the land described in the deed and mortgage. The defendant Clement Sweet, immediately after such purchase of the five acres, built a house thereon, and occupied the same with his family until the trial of this action. The deed of the five acres and the release were not recorded till June 24, 1882, which was subsequent to the time of recording the several assignments of the mortgage, save the assignment to the plaintiff. The assignors of the mortgage to the plaintiff purchased and paid for it the amount owing thereon, without any notice of the release, and in entire good faith that the lien of the mortgage covered all the lands described in it, including the five acres in controversy. The complaint, after setting forth the matters above stated, except those in relation to the release, asked for a decree of foreclosure and sale of the premises described in the mortgage, including the five acres owned by the defendant Clement Sweet. His answer alleged that the mortgagor, Creed, had released the five acres from the lien of the mortgage before he assigned it, and asked to have the same excepted from the judgment of sale. The trial court decided ‘that the five acres were not subject to the mortgage, and directed a sale of the remainder of the mortgaged premises only.’ The plaintiff appealed to the general term from that portion of the judgment which excepts out of the premises to be sold the five acres referred to, and the judgment was affirmed. Plaintiff again appeals.

FOLLETT, C. J., and VANN, J., dissenting.

A. M. & G. Card and W. Farrington, for appellant.

Esslstyn & McCarty, for respondents.

POTTER, J., ( after stating the facts as above.)

From the matters alleged in the pleadings, an appellate court would expect that the issue tried would have been whether the five-acre piece of the lands had been released from, or was still subject to, the lien of the mortgage, and that the findings of the trial court would have indicated a decision of that question. But it will be observed, upon reference to the findings in this case, that the trial court did not decide the issue made by the pleadings, but decided quite another and different issue, and that is that the five-acre piece was not, and never was, subject to the lien of the mortgage. While parties have the right to try the issues made by the pleadings, yet they are not bound to, but may, try any other issue by mutual consent. The pleadings in such cases serve to show what was once in the minds of the pleaders, and what the parties had the right to try, if so disposed, and perhaps the further purpose of constituting a part of the judgment roll, as the Code of Practice requires that the judgment roll should contain the pleadings. The court, in reviewing such cases, is only called upon to determine whether the parties have consented to try the substituted issues, and whether the decisions of the court upon the new issue are according to law. In the absence of amended pleadings or of stipulation, the court of review must infer the consent to try issues from the evidence offered upon the one side, and the absence of objections or the character of the objections, if any are made, upon the other side. Marston v. Gould, 69 N. Y. 220;Platner v. Platner, 78 N. Y. 95;Walsh v. Insurance Co., 32 N. Y. 440-443. Upon the trial of this case, the plaintiff proved the substantial allegations of the complaint by the introduction of the mortgage, the several assignments, and the dates of recording the same. Such proofs showed that the fiveacre piece was subject to the lien of the mortgage. The defendant Clement Sweet then introduced the deed of the five acres to himself by Franklin Sweet, the mortgagor, and the release thereof by Francis Creed, the mortgagee, and that these several instruments were the results of a common negotiation between the parties to the instruments, which, when enlarged and expressed in their constituent elements, signify that on the 1st day of May, 1873, Francis Creed, Franklin Sweet, and Clement Sweet met together, and entered into a tripartite negotiation,-the said Creed to sell his land, and the said Sweets each to buy a portion of it. At the same time and place, Franklin Sweet gave a mortgage back to said Creed purporting to impose the lien of said mortgage upon said five acres. That said five acres were at the same time and place conveyed to Clement Sweet by Franklin Sweet, and at the same time and place said Francis Creed released said five acres from any lien under said mortgage, and that at the same time and place the defendant Clement Sweet paid $150, the price of the five-acre lot, which went to make up the $500 received by Francis Creed; and that sum, with the $2,000 secured to be paid by the mortgage, made up the price of the entire piece of land. All this evidence was received without objection, except that the evidence of the delivery of the release was objected to as immaterial, and that the release was not then attested and acknowledged. This objection to the delivery of the release was doubtless properly overruled. These facts were proved without objection.

The next step in the trial was this question by defendant: ‘Question. Were not the execution and delivery of the deed from Francis Creed to Franklin Sweet, and of the bond and mortgage from Franklin Sweet to Francis Creed; the payment of your $150 to Franklin, and his $350, with yours, making $500, to Francis Creed; the execution and delivery of the deed of the five acres to you, and the execution and delivery of the release thereof to you,-simultaneous acts, made at the same time and place, and one and the same transaction?’ This was objected to as calling for a conclusion of fact, and improper; and the objection was overruled, and defendant excepted. Thus it will be seen that all this evidence, when given in detail, was not objected to; and, when it was afterwards sought to embrace all this evidence in one question, that question was not objected to as calling for impertinent or irrelevant evidence, or evidence not within the issue, but simply as calling for a conclusion of fact, and improper. It seems to me to be a very plain case where the parties have ignored the issue made by the pleadings, and by mutual consent tried another. See authorities before cited. Nor do I perceive that any error was committed by overruling the objections, and allowing the witness to answer the general question referred to above. The witness had already testified to every fact contained in the general question, and without objection. Adding to the end of the general question embracing the entire series of acts, ‘if they constituted one and the same transaction,’ it seems to me, was unobjectionable, and could work no harm. Sweet v. Tuttle, 14 N. Y. 465-472;Knapp v. Smith, 27 N. Y. 277-282. Every one of the matters constituting the series had been before proven to have been done at the same time and place without objection. Whether they constituted one and the same transaction was much more a conclusion of law than of fact, and were all before the trial court when this general question was asked, and could not in the least degree have affected the decision that was subsequently made by the court.

Upon the matters thus proven, practically without objection, the rrial court found, as a conclusion of fact: ‘(1) That on the 1st day of May, 1873, the defendant Franklin Sweet made, executed, and delivered to one Francis Creed his bond and mortgage, as alleged in the complaint, and purporting to cover the premises described in the complaint in this action, but not intended to cover the five acres sold to Clement Sweet by Franklin Sweet, and bounded generally as follows: North, by Henry Wilbur; east, by Franklin Sweet, south, by the highway; and west, by Otis Moore,-which mortgage was duly recorded in the Dutchess county clerk's office on the 7th day of May, 1873, in Liber 144 of Mortgages, at page 447, etc. This pices was never included in the plaintiff's mortgage, but was sold free from it before it was executed.’ And, as conclusions of law: ‘(1) That the five acres of land claimed by the defendant Clement Sweet in this action, and included in the description in said mortgage, is free from said foreclosure. (2) That the whole of the premises described in the mortgage, except the five acres sold to Clement Sweet, be adjudged to be sold according to the rules and practice of this court in foreclosure cases.’ These results are claimed to have been produced notwithstanding the five acres are embraced within the description contained in both the deed and the mortgage...