Gannon v. McGuire

• Citation: 160 N.Y. 476,55 N.E. 7
• Parties: GANNON v. McGUIRE et al.
• Decision Date: 27 October 1899
• Court: New York Court of Appeals

160 N.Y. 476

55 N.E. 7

GANNON

v.McGUIRE et al.

Court of Appeals of New York.

Oct. 27, 1899.

Appeal from supreme court, appellate division, First department.

Action by Sarah Gannon, as administratrix, etc., against Catherine McGuire and others, for a foreclosure of a mortgage. From an order of the appellate division (47 N. Y. Supp. 870) reversing a judgment dismissing the complaint, defendants appeal. Order reversed, and judgment affirmed.

Abram Kling, for appellants.

James P. Campbell and Alexander Thain, for respondent.

PER CURIAM.

The substantial issue presented by the pleadings is whether the mortgage sought to be foreclosed in this action, together with the accompanying bond, were delivered by the plaintiff's intestate to the defendant Catherine McGuire as a gift inter vivos. According to the order of reversal, the learned appellate division did not disturb the facts presumed to have been found by the trial court, which include all facts warranted by the evidence and necessary to support the judgment. People v. Adirondack Ry. Co., 160 N. Y. 225, 54 N. E. 689; Code Civ. Proc. §§ 1022, 1338. The trial court decided that prior to the death of plaintiff's intestate ‘the defendant Catherine McGuire became the owner of the bond and mortgage described in the complaint * * * by virtue of an executed gift from plaintiff's' intestate. If this fact stands, the judgment of the trial court should stand, unless some error was committed during the progress of the trial to the injury of the plaintiff. Whether the fact has the support of any evidence, which, according to any reasonable view, warranted the trial judge in finding it, is a question of law, and is the main question presented for review. Otten v. Railway Co., 150 N. Y. 395, 400,44 N. E. 1033;Edson v. Bartow, 154 N. Y. 199, 217,48 N. E. 541. No question relating to the weight of evidence is before us, for, if the appellate division intended to base their reversal upon a question of fact, the statute required them to make it clearly appear ‘in the record body of the judgment or order.’ Code Civ. Proc. § 1338. Mrs. McGuire was a cousin of Mr. Gannon, the plaintiff's intestate, and seems to have been his most favored relative. By his will, which for some reason was not admitted to probate, he gave her the greater part of his estate. According to all the witnesses who spoke upon the subject, it was his clear intention to make a gift to her of the bond and mortgage in suit, but the testimony of some of them tended to show an intent to make a gift in futuro, and not in praesenti. He signed and acknowledged a conveyance from himself to Mrs. McGuire, embracing the property covered by the mortgage and, by the advice of his attorney, caused to be prepared a mortgage from Mrs. McGuire to himself for $8,500, upon the same property, collateral to a bond in the penalty of $17,000. He then took all these instruments to the residence of Mrs. McGuire, and, according to the testimony of the notary who accompanied him, said to her: ‘I am giving you this house in Forty-Eighth street. My lawyer, Mr. Cushing, has advised me to take back a bond and mortgage. I protested against it, because I did not want the bond and mortgage. The house is to be yours, subject to the Emigrants' Savings Bank mortgage. I am doing this just as a matter of form.’ He then handed her the deed, and said, ‘This is the deed of the property.’ Thereupon she executed the bond and mortgage, and handed them to him. After she had thus executed the bond and mortgage, and delivered them to him, he redelivered them to her. She then handed them to him, and he said, ‘I am taking this to keep for you, and put it in a place of safe-keeping, so when I die you shall have this property free and clear of any incumbrance. I am simply doing this at the request of my lawyer, and it will be of no account, because I am keeping it for you, and I will place it in a place of safe-keeping for you, to be delivered to you upon my death, upon an order which I will sign to a party to deliver it to you.’ This testimony was corroborated to some extent by that of another witness. Two or three days later he said to the notary: ‘Mr. Ledwith is a particular friend of mine, of the Emigrants' Savings Bank. I meet him occasionally. I will put all the papers with him, to be delivered to Mrs. McGuire upon my death.’ He said he would hold them for her, would surrender them to her upon the order, and that he did not want the mortgage recorded as being a lien upon the property. Referring to the bond and mortgage, he said, ‘You can burn it up.’ Shortly afterwards he left the papers with Mr. Ledwith, where they remained for about 10 months, when he died. A few hours before his death, and in view of that event, he sent for his attorney, Mr. Cushing, and asked him to draw up an order for Mrs. McGuire upon Mr. Ledwith ‘to get what papers he left with him some time ago,...