Hull v. Babcock — 7 A.D. 264

Majority

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Emma T. Hull, Respondent, v. Hamlin Babcock, Appellant.

Headnote

Bond and mortgage—right of the party giving them to show that they were.given to accommodate the mortgagee..

In an action brought npon a bond made in 1878 by- the defendant to the plaintiff, the defense was interposed that the bond, and the mortgage given as collateral thereto, were made, without any consideration, solely for the accommodation of the plaintiff, to enable the plaintiff to purchase a lot in Plainfield, New Jersey, the mortgaged premises having been purchased in 1869, and’ the title taken in the defendant’s name, at the request of the plaintiff’s husband, who paid the purchase price-thereof and thereaften.died in 1870.

¡Evidence was given in the.plaintiff’s' behalf,.tending to show-that the bond and mortgage were given to secure an indebtedness which the defendant had been under to the plaintiff’s husband.

The defendant stated' that he had paid interest ou the bond and mortgage for several years, hut he was not permitted by the court to state how he' came to -, pay the interest, nor why it was demanded, of him. He. also endeavored to prove by his attorney, that, in 1869, the attorney had received from the defendant |910 as a special deposit on account of a person named Hull; and the attorney stated that he had made entries in his books relative to the transaction In relation to the purchase of the mortgaged property; but he -was not allowed to read them. The attorney was also - asked whether he had. received money . from Mr. Hull with reference to the purchase of the property in question, and the defendant himself was asked by his counsel whether he held the premises in question as trustee or not; whether, at the time he received the deed, he paid any money to any one, who paid the consideration, etc. ' All this evidence was excluded.

JSeld, that some of the evidence was competent upon the question whether or not the defendant owed the plaintiff a debt which constituted a consideration for the bond.and mortgage, and that the ruling rejecting it was erroneous.

- ■ Appeal by the defendant, Hamlin' Babcock, from a judgment, of the Supreme. Court-in-favor of the plaintiff, entered in the office of

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the clerk of the county of Hew York on the 13th day of February, 1896, upon the verdict of a jury directed by the court. .

The action was brought upon a bond made by the defendant to the plaintiff. The making of the bond was not denied, but it was alleged by way of defense that there was no consideration for the bond, and that it was made solely for the accommodation- of the plaintiff. Some evidence was given upon which defendant claimed that the question as to his defense should have been submitted to the jury, and other evidence was offered, which defendant claims was improperly excluded. The plaintiff was the' widow of William L. Hull, who died June 19, 1870.. The. bond was given June 11, 1873. Ho money was advanced by plaintiff at the time the bond was given. It was given with a mortgage which covered property on One Hundred and Sixth street, Hew York city, of which the defendant had the legal title, having taken such title about January 1, 1869. The defendant, alleged in his answer in brief that he purchased this One Hundred and Sixth street lot at the request of, and as trustee for, the plaintiff’s husband, and assumed the mortgage, and that the balance of the purchase price was paid in cash by plaintiff’s husband; that defendant offered to deed the- lot over to plaintiff’s husband, but he requested defendant to retain the title, and sell the same with defendant’s lots adjoining and to pay to him, plaintiff’s husband, the one-half of the proceeds of the sale; that after the death of plaintiff’s husband lie offered to convey the property to Bobert B> Hull, executor of the estate of plaintiff’s husband, but the executor requested him to retain title to the' lot and to execute the bond and mortgage for $1,175, the mortgage covering the lot, in order that plaintiff- might use the same upon a purchase of property from one Platt, in Plainfield, H. J.; that he complied with such request, receiving himself no consideration for the bond and mortgage which were assigned to Platt; and that defendant subsequently paid the interest on the bond and mortgage for several years, at the request of plaintiff.

On cross-examination the • plaintiff testified that, during her husband’s lifetime, she advanced to him $1,175, which, her husband told her was loaned to the defendant, and that defendant since her husband’s death had acknowledged thedoan; and she testified that

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this bond and mortgage was given for that indebtedness by defendant. She also testified that the defendant, at various times after the bond and mortgage were given, acknowledged the indebtedness, and promised to pay it. Defendant denied having, made any such acknowledgment of. indebtedness or agreement to pay it.

Mrs. Eaton, a sister of plaintiff, was also styo-rn in the. case on rebuttal, and testified that she had several talks with defendant about the bond and mortgage before they were given, and that he stated that the debt was one of honor to plaintiff’s husband, in which there was no stroke of a pen to show it, and that he had received the money ; that she also had talks with defendant after the bond and mortgage, were given, and he always recognized the. debt as one of honor, something he owed,, and would never be satisfied until the estate was paid principal and interest; that plaintiff s. husband had been a true friend of his from, their boyhood and that he would see that the debt was paid..

The defendant denied that he ever made any of these statements testified to by Mrs. Eaton. He further testified that he and plaintiff’s husband were friends and neighbors and belonged to the same boat club, and that his, defendant’s,, business was,, in 186.9, and always had been, a. real estate business; that he, defendant, purchased some lots,kvOne Hundred and Sixth street,.Hew York city; that the negotiations for the bond and mortgage were had by him with Robert B. Hull, the brother of plaintiff’s husband ; that Robert was dead; that Robert wrote him, defendant, that plaintiff desired to buy a lot in Plainfield of one Platt, on which to' build a house, and asked him, defendant, to buy this lot (apparently meaning, the lot on One Hundred and Sixth street, covered by the mortgage given to secure the bond in suit); that defendant told him he did not want the lot; that he already had more than he could manage, and that he, defendant, had formerly prepared a deed and offered it; that Robert desired him to keep the lot and try to sell it, but the market was dull and they could sell nothing in those days, and that Robert then requested him, defendant, to execute a. mortgage of $2,.000 and he would see if Mr. Platt, would accept such mortgage in payment for his lot; that he, defendant, was importuned to buy the lot many times, and for. a long time, and to make this mortgage, that Robert finally said the Platt lot would cost about $1,500 ; that

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he required about $1,500, and finally induced him, defendant, to execute the mortgage for $1,475.

The defendant offered other evidence by himself and a witness, Judge Addison Brown.- Judge Brown testified that he was in the active practice of the law in 1888 and acted as counsel for defendant, and that he remembered a transaction relating to the purchase of property on One Hundred and Sixth and One Hundred and- Seventh streets, in Hew York city, twelve lots.

The witness was asked if he received any money for the .purchase of a piece of property from Hr. Hull. "Witness produced a receipt written and signed by himself, dated January 5, 1869, stating that he received from defendant $910 “ as special deposit acct. Hull; and defendant offered the receipt in evidence. Witness also produced a warranty deed from defendant to plaintiff of the One Hundred and Sixth street lot, dated January 11, 1870, signed and acknowledged by defendant, expressing no consideration, and not recorded, and defendant offered this in evidence. Witness stated, that he made entries in his books at the time of the transaction when the purchase of the One Hundred and Sixth street property was-made; he produced the book and defendant offered it in evidence. Witness was then asked" if he received money from Hull with reference to the purchase of the One Hundred and Sixth street lot. All these offers of evidence were objected to, and the -evidence was excluded by the court.

The defendant himself was asked by his own counsel if he had. any beneficial interest in the One Hundred and Sixth street lot;. whether he held the lot as trustee or not; whether at the time he received the deed he .paid any money to anybody; whether he or anybody else paid the consideration for the lot; whether plaintiff’s husband paid the consideration. All these questions were objected to, and the evidence was excluded by the court., '

Defendant testified that after the bond and mortgage were given he paid the interest thereon until 1876, and that such -payment was demanded, but he was not permitted by the court to state how he came to pay the interest or how the demand was made.

This was substantially all the evidence given upon the trial.

At the close of all the evidence the court directed a verdict for plaintiff for the amount unpaid on the bond and mortgage. The

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'defendant excepted and requested to be allowed to go: to the jury as to the question of consideration for the bond and mortgage, which was refused with exception. .From the judgment entered upon this verdict, this appeal is taken.

Robert L. Harrison, for the appellant.

Charles B. Alexander, for the respondent.

It seems to us that the learned , trial court erred in the disposition made of this; case.. There seems to be.no. doubt, from the evidence given on the .part of plaintiff herself that "the consideration for this bond and mortgage,.if any,, was an indebtedness by defendant to the plaintiff’s husband.. The defendant, by his answer, denied that any such indebtedness ever existed,,alleging that the title to the. One Hundred'and Sixth, street lot Was taken and held by him merely as an accommodation for the plaintiff’s, husband; that the money, paid for. the lot was npt borrowed by defendant from jilaintiff’s husband, but was. paid by the. latter directly to. the owner, as.the purchase price of .the property. This defense he attempted to prove on the trial by himself, and. the witness..Brown. Some of the evidence .offered for this purpose was competent .and should- -have been received;. and. when so- received" it, would .have been a question for the jury whether there was an indebtedness, by defendant to plaintiff’s husband which constituted a consideration for the bond and mortgage. It is true,.that,, even if defendant correctly alleged in his answer, the 'original transaction between" himself and the plaintiff’s- husband, it- would still have been competent-for him, after the death, of plaintiff’s- husband, and with the assent of the persons then .interested in the- .property, to retain title to the property, and give the bond and mortgage, for .the money advanced by plaintiff’s husband,, for the purchase price thereof. . The defendant, however, did not concede that: he gave the bond and mortgage, under siich circumstances, but.testified that he gave them without any consideration,, and .solely for plaintiff’s. accommodation, and it was a question .for the- jury what .the; circumstances were under which the bond, and mortgage were given. It could not be determined .by .the court.... Some of., the evidence offered was objection

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able, and should not have been received. Some of it, however, was clearly competent and proper, and we think that under the rulings of the court, fairly considered, the defendant was denied an opportunity to give competent and material evidence in support of his defense, and that such evidence having been received, the questions raised would have been for the jury, and not for the court.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and a new trial ordered, with costs to appellant to abide event.