Bush v. Treadwell

Headnote

Appeal from a judgment of the Special Term, in favor of the defendant.

The plaintiffs are collateral heirs of Chauncey Bush, who died intestate, October 27, 1865, leaving no widow or child him surviving.

They bring this action, claiming to redeem certain lands described in the complaint, on the ground that a conveyance of the premises by quitclaim deed, executed by said Chauncey Bush to the defendant, on or about the 11th day of August, 1856, was in fact intended as a mortgage; and they allege that the conveyance was executed under an agreement by and between the intestate and the defendant, that the intestate should convey the lands to the defendant, and that the same should be held by the latter as security for the repayment by said Chauncey, of such moneys as he, the said Treadwell, should advance on account of said lands upon said mortgage, assessments and taxes, and that he, the said defendant, would, upon being repaid the same, reconvey the said premises to him; the said Chauncey Bush, or to his heirs or assigns.

The principal question of the case was one purely of fact, and the General Term was of opinion, that the learned justice before whom it was tried, having heard all the evidence on both sides, and decided that upon all the evidence in the case he was unable

to find that the conveyance was made or intended by said Ghauneey Bush, or accepted by said defendant, as a trust as' alleged in the complaint, the judgment below should not be disturbed.