Ruth H. Smith, Resp’f, v. Caroline A. Smith, App’lt.(Supreme Court, General Term, Second Department,Filed February 10, 1890.)Headnote
Mortgage—Satisfaction.Plaintiff was induced by defendant to satisfy a mortgage held against her, on condition that plaintiff should have the interest during her life. Held, a contingent gift of the bond and mortgage; that acceptance thereof amounted to a stipulation for performance of the condition subsequent, and that on failure to perform plaintiff was at liberty to revoke the gift and have the bond and mortgage reinstated in full force.
Appeal from judgment setting aside the satisfaction piece of a mortgage.
The parties are sisters, aged respectively sixty-six and seventy years. In 1886, plaintiff was the owner of a mortgage upon defendant’s lands, and claims that defendant, talcing advantage of her ignorance of business matters, induced her to execute a satisfaction piece of said mortgage without paying her. Plaintiff testified that she did not know what a satisfaction piece was until afterward. Defendant’s evidence showed that plaintiff said that all she wanted was the interest due in her life, and that after she .was dead Caroline could have the rest Defendant paid interest for six months, but no more. The court refused to find that there was fraud, but held that it was a conditional gift and that the condition had failed.
JSJ. R. Aclcerly, for appl’t; Thos. J. Ritch, Jr., for resp’t.
Neither law nor equity will justify any disturbance of the judgment in this action. The plaintiff intended to make a contingent gift of the bond and mortgage to the defendant, but the condition annexed to the present was of vital importance to the plaintiff, and the defendant accepted the donation burdened with the proviso. Such acceptance amounted to a stipulation on the part of the defendant for the performance of the condition subsequent upon which the donation was made, and having violated her agreement to pay interest upon the amount of the mortgage, the plaintiff was at liberty to revoke the gift and have the bond and mortgage reinstated upon the record and restored to her possession in full force and vitality.
The judgment should be affirmed, with costs.
Barnard, P. J., and Pratt, J., concur.