Farmers & Mechanics Bank v. Burgeson — 211 A.D. 831

Majority

p. 831

Fourth Department,

November, 1924.

Farmers and Mechanics Bank, Respondent, v. Clara M. Burgeson and Others, Defendants, Impleaded with Woodlawn Trust and Savings Bank, Appellant.

Headnote

Mortgages — validity — mortgage executed by wife as security for loan to husband is valid.

Appeal from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the llt-h day of December, 1923, setting aside a mortgage of the defendant Woodlawn Trust and Savings Bank.

The learned county judge has found in this case that the mortgage in question was delivered by Mrs. Burgeson upon condition that she should receive the sum of $4,500 thereon. We do not take this view of the evidence, but are of the opinion that the mortgage was executed and delivered with the intention that it should be used in securing a loan to her husband from a bank and that such was exactly the use to which it was put. The mortgage is, therefore, valid. Certain findings of fact are disapproved and reversed; conclusions of law disapproved; new findings of fact and conclusions of law made. The judgment should be modified and as modified affirmed, with costs both in the trial court and upon this appeal to the defendant Woodlawn Trust and Savings Bank against the plaintiff.

All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Judgment modified in accordance with the opinion and as so modified affirmed, with costs at Trial Term and in this court to the defendant Woodlawn Trust and Savings Bank against the plaintiff. Findings of fact disapproved and reversed and conclusions of law disapproved, and new findings of fact and conclusions of law made in accordance with the opinion.