Parkhurst v. Berdell

• Decision Date: 02 October 1888
• Citation: 110 N.Y. 386,18 N.E. 123
• Parties: PARKHURST v. BERDELL.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 386

18 N.E. 123

PARKHURST

v.BERDELL.¹

Court of Appeals of New York.

October 2, 1888.

Appeal from supreme court, general term, Second department.

This action was brought to compel an accounting by the defendant for certain money and securities of the plaintiff had and appropriated by him, and to have the amount found due her declared a lien upon certain land in Goshen, in this state. The action was referred, and the facts found by the referee, so far as it is now material to state them, are as follows: That Sylvester C. Parkhurst, the husband of the plaintiff, died in the city of New York on the 12th day of April, 1867, and at the time of his death he had in his possession and was the owner in his own right of the following property: 292 shares of the stock of the Ninth National Bank of New York, of $100 each; 15 bonds of the Long Dock Company, of $1,000 each; United States bonds of the par value of $5,500; 5 bonds of the Alton & Terre Haute Railroad Company, of $1,000 each; 5 first mortgage bonds of the New York & Erie Railroad Company, of $1,000 each; and 10 bonds of a Newark Horse Railroad Company, of $500 each; and that by his will he bequesthed all of the property to the plaintiff, and she took possession and became the owner thereof. That the plaintiff loaned the securities to the defendant, Berdell, some of them in the year 1869, and the remainder of them in the year 1870. That, soon after borrowing them, the defendant sold 147 shares of the bank stock for the sum of $16,530, which he received; and after charging himself with that sum, together with the interest and dividends on the securities remaining unsold which had been collected by him, and deducting therefrom all such sums as he had paid or advanced to the plaintiff, and all other sums which she owed him, there was a balance found due her of $16,000, for which he gave her his note, bearing interest, dated July 1, 1870; that he gave her his receipt, bearing date January 1, 1870, for the balance of the bank stock unsold, and the other securities, as follows: ‘Received, Goshen, Orange county, N. Y., January 1, 1870, from Mrs. E. W. Parkhurst, 14,500 (145 shares) Ninth National Bank stock; 15,000 (1,000 each) Long Dock Bonds; 5,500 (1864 s.) U. S. bonds; 500 Terre Haute & Alton second mortgage bonds. The above securities have been loaned to me to use, and I agree to return them to her at her request. ROBERT H. BERDELL. Also five Erie 1st mortgage bonds. Also 5,000 Newark Horse R. R. bonds. ROBERT H. BERDELL.’ That after the giving of the note of $16,000 the defendant collected from time to time, as the same became due and payable, the interest and dividends on the securities mentioned in the receipt; and from time to time, as she required the same, paid her portions thereof. That on the 1st day of January in each and every year after the receipt was given, (except January 1, 1871,) up to and including the 1st day of January, 1875, the plaintiff and defendant had an accounting and settlement, in which he charged himself with the amount of the note held by her at that time, and interest thereon given by him to her on a previous settlement and accounting, and also with the dividends and interest received by him upon the securities mentioned in the receipt, and credited himself with moneys paid to or for her; and, for the balance thus found due to the plaintiff on such settlement, he then gave his note, bearing interest, and payable on demand. That on the settlement had January 1, 1875, there was found due her the sum of $34,569.61, for which he gave her his note payable on demand, with interest, which note, with interest, remained unpaid and due to her. That he has not returned to her the securities mentioned in the receipt, although requested by her to do so, but he has refused to return the same, and has converted the same to his own use. That on the 24th day of September, 1873, he, for the purpose of securing her for the payment of the note then held by her which had been given on a previous settlement as above stated, and also for the purpose of giving her security for the return of the stocks and bonds mentioned in the receipt of the proceeds thereof, executed and delivered to her his bond for the sum of $80,000, dated that day; and also, together with his wife, for the purpose of securing the bond, executed and delivered to her a mortgage for the same sum, on certain real property belonging to him in the city of New York, which mortgage was duly recorded. That thereafter, in the year 1874, he, desiring to convey to the Central National Bank the lands covered by the mortgage, requested her to execute and deliver to him a satisfaction piece thereof; and in consideration thereof he promised and agreed that he would, in lieu thereof, execute and deliver to her another mortgage for a like amount, and for a like purpose, on real estate owned by him in the town of Goshen, Orange county, as a substituted security. That thereafter, on the 23d day of July, 1874, in compliance with his request, and in reliance upon his promise, she executed and delivered to him a satisfaction piece of the mortgage for $80,000, and that mortgage was actually thereby satisfied of record, and he thereafter conveyed the land covered thereby to the Central National Bank. That thereafter, on the 24th day of July, in the same year, he in fulfillment of his promise, executed and delivered to her a mortgage on the Goshen real estate for the sum of $80,000, and she handed the same back to him for safe-keeping, he promising to have it recorded. That he has neglected and refused to have the mortgage recorded, or to return the same to her, although requested so to do, and it still remains unrecorded. That a certain instrument bearing date December 12, 1862, purporting to be a deed of trust by him to Sylvester C. Parkhurst, for certain lands in the city of New York, was never delivered by him, nor was it intended that it should be delivered, and it was not intended to be an operative instrument, or to be carried into effect, as between the parties to it, or as between them or either of them and the cestuis que trust named in the trust deed; nor was the trust agreement between him and Parkhurst, of the same date as the trust deed, intended, when executed, to be carried into effect, as between them or either of them, and the cestuis que trust named in the trust deed. That the stock and bonds mentioned in the receipt above set out were on the 6th day of November, 1875, the day when this suit was commenced, and ever since have been, of the value, in the aggregate, of $52,000; which, with the interest thereon from January 1, 1875, was chargeable to the defendant. And the referee found, as conclusion of law, that the plaintiff was entitled to judgment against the defendant for $125,620.80; that sum being the aggregate of the principal of his promissory note for $34,569.61, dated January 1, 1875, and the interest thereon; and of...