Huson v. Stoll

Headnote

Judgment — foreclosure — action to set aside judgment adjudging a promissory note to be an equitable mortgage and decreeing foreclosure and sale.

Huson v. Stoll, 202 App. Div. 734 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 25, 1922, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The complaint herein seeks to set aside two judgments recovered against the plaintiff by the defendant, one on March 5, 1919, and the other April 23, 1920; the first decreed a certain promissory note, made by plaintiff to defendant, to be an equitable mortgage by deposit of title deeds by plaintiff with defendant, that showed title in her to ten hundred and twenty-eight acres, situated in Suffolk county; said judgment also decreed foreclosure and sale of said lands to pay the sum of two thousand dollars and interest, the amount of said note or mortgage. The second was for a deficiency resulting after the sale of said lands. The decision of the court was based upon the construction the court gave to an interlineation above the maker’s signature, reading as follows: “ To secure which loan, I deposit deed to my property, 1,028 acres at Riverhead, L. I., on which there is an outstanding mortgage of $6,500.” This inter

lineation, appellant claims, is a forgery, in that it was inserted after the note was signed and without her knowledge or consent. She further claims that there was no loan made of two thousand dollars, or any other sum; that she never received any consideration of any kind from the defendant for making the note; that, on the contrary, the note was obtained from her by the defendant on the pretense of discounting it and remitting the proceeds to her; that it was not discounted, and instead of returning the note to her, the defendant converted it to his own use., and while in his possession the interlineation was forged, changing it from an ordinary promissory note into an equitable mortgage.