Wilson v. Parshall

• Decision Date: 01 December 1891
• Citation: 29 N.E. 297,129 N.Y. 223
• Parties: WILSON v. PARSHALL.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 223

29 N.E. 297

WILSON

v.PARSHALL.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from supreme court, general term, first department.

Action by Andrew Wilson against William A. Parshall for damages. A judgment entered on a verdict for plaintiff was reversed at general term, and plaintiff appeals. Affirmed.

A. B. Cruikshank, for appellant.

H. Applington, for respondent.

EARL, J.

This action was brought to recover damages for the breach of the covenants contained in a full covenant deed of real property situate in the city of New York, which was purchased of the defendant by the plaintiff in 1880. The plaintiff's claim is that there were breaches of the covenants of seisin, of a right to convey, and against incumbrances. The court directed a verdict against him, and be claims that, at least, the evidence should have been submitted to the jury. The real estate formerly belonged to John W. Bockhorn, and on the 3d day of December, 1877, he conveyed it to the defendant by a deed absolute in form, containing full covenants, subject, however, to two mortgages, one for $6,000 and another for $5,100, the latter having been executed to secure an indebtedness from him to the firm of H. K. Thurber & Co. The plaintiff claims that this deed was executed to the defendant, who was connected with that firm, to secure the same debt, and that therefore it was in fact and legal effect a mortgage, and that thus his title was imperfect. These deeds in form conveyed a perfect title to the real estate, and the burden was upon the plaintiff, in this action for a breach of the covenants, to show that they did not, and in this he utterly failed. The security of titles and sound public policy require that a party alleging that a deed, absolute in form, is nevertheless a mortgage, should show it by very satisfactory evidence; and, where he attempts to show it by oral evidence, his proof should amount to more than a mere guess or surmise, or enen inferences which are just as consistent with one theory of the deed as the other. In limine it may be observed that it is entirely improbable that Thurber & Co., already having a mortgage to secure their debt, should take another mortgage on the same property, for the same debt, without any apparent reason or advantage, and then record it as a deed. But the proof shows without any doubt that this deed was not intended as a mortgage. While Bockhorn, a witness for the plaintiff, testified, in a general way,...