Marshall v. Reynolds — 35 N.Y. St. Rep. 268

Majority

p. 268

Cyrus J. Marshall, Resp’t, v. Mary E. Reynolds and Ira C. Reynolds, App’lts.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Mortgage—Consideration.

Certain premises were conveyed to defendant by her father-in-law and she gave back a mortgage for $2,500 thereon. In an action to foreclose the mortgage defendants claimed that the mortgage was without consideration, the deed being given in consideration of a release by defendant’s husband of his share in his father’s estate. The father testified that the mortgage was taken by him to be paid so as to preserve the equities between his children and it appeared that interest had been demanded and no claim was then made that the mortgage was not a valid security. Meld, that the evidence justified a finding that the mortgage was given for value and was to be paid.

p. 269

Appeal from judgment of foreclosure and sale.

James B. Lockwood, for app’lts; David FI. Hunt, for resp’t.

On the 1st of April, 1885, the defendant took a deed from her father-in-law expressing a consideration of $4,000. On the 13th of April, 1885, Mary Reynolds executed to her father-in-law a mortgage on the premises conveyed to her by the deed for $2,500. The plaintiff owns the mortgage and it has never been paid. The answer avers a want of consideration for the mortgage. Ira 0. Reynolds, the husband of Mary Reynolds, the grantee, testified that the deed was given to his wife by his father and that the mortgage was taken back so as to prevent the son from selling the place. The son Ira gave to his father a release of all claim on the estate of his father. The father testified that he had advanced to his son besides this deed, $2,000, and that the son had his share and that the mortgage was taken to be paid so as to preserve equity between his children. The parties differ entirely. The papers support the mortgage. It appears that the father asked both his son and his son’s wife for the interest upon it Mo claim was made by them that the mortgage was not a valid security. There is nothing in the evidence which would justify an appellate court in reversing the finding that the mortgage was given for value and was to be paid

Judgment affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.