Kirby v. Tricker , 265 A.D. 149 ( 1942 )

Lazansky, P. J.

From a writing signed by defendants,' it appears that plaintiff loaned to defendants a sum of money which they promised to repay with interest at six per cent, to be computed semi-annually; that a deed to property at Southold was given “as collateral for the aforesaid loan”; that the deed was not to be recorded unless there was default in the payments and was to be surrendered when full payment had been made. After default, the deed was recorded and an action was brought for the balance of interest due, amounting to $1,046.18. Over objection that it would vary the terms of a written instrument, oral testimony was introduced in support of a defense to the effect that if defendants were not able to pay the note or the interest the deed should be recorded and that would end the transaction. Plaintiff denied that there was any such arrangement. There was no proof of the value of the property. On the verdict of a jury in their favor, judgment was rendered for defendants.

The writing shows that the parties intended the deed to be a mortgage and was final and complete in itself and “so certain as to bar out all inquiry in respect of the purpose of the parties.” (Di Menna v. Cooper & Evans Co., 220 N. Y. 391, 397.) The oral testimony contradicts the writing and should' not have been admitted. The provision that the deed was not to be recorded unless default was made in payments clearly carried with it the implication that, if there were a default, the deed might be recorded. Recording did not change the nature of the transaction. (Real Property Law, § 320; Cons. Laws, ch. 50.) “ The right to redeem is an essential part of a mortgage, read in by the law if not inserted by the parties.” (Mooney v. Byrne, 163 N. Y. 86, 92.)

Further, it is a well-established doctrine of equity, also applied at law, that the parties to a deed may show by parol, as here, that it was intended to be a mortgage. (Barry v. Hamburg-Bremen Fire Ins. Co., 110 N. Y. 1, 5.) While this doctrine has been most frequently asserted for the benefit of the borrower, it may be resorted to by the creditor. (Andrus v. Burke, 61 N. J. Eq. 297, 300; McMillan v. Bissell, 63 Mich. 66; Kellogg v. Northrup, 115 Mich. 327; Holman v. Mason City Auto Co., 186 Iowa, 704; Woods v. Wallace, 22 Penn. St. 171.) Another well-established equitable principle is “once a mortgage always a mortgage.” (Macauley v. Smith, 132 N. Y. 524, 531.) If a mortgagee may have the benefit of the rule that a deed, fair on its face, may be shown to be a mortgage, it would seem to follow that the rule of “once a mortgage always a mortgage” may be invoked by him. It was so held in Woods v. Wallace (supra). So firmly has this rule of “once a mortgage always a mortgage” become entrenched in the law that, even by express agreement made at the inception of the instrument, the debtor may not waive his right to redeem. (Mooney v. Byrne, supra.) Therefore, if the oral testimony were properly received, it could not change the effect of the writing.

In Verity v. Metropolis Land Co. (248 App. Div. 748; affd., 274 N. Y. 624) there was no agreement, when the loan was made, to forego the right of redemption. The agreement in that respect was made as a term of an extension agreement. “A mortgagor and mortgagee may, at any time after the creation of the mortgage and before foreclosure, make any agreement concerning the estate they please, and the mortgagee may become the purchaser of the right of redemption.” (Odell v. Montross, 68 N. Y. 499, 504.)

The judgment should be reversed on the law, with costs, and, there being no question for a jury, judgment should be directed for plaintiff, with costs.

The appeal from the order denying the motion to set aside the verdict and for a new trial should be dismissed, without costs.