Strong v. Stewart

Decided October 18, 1819

New York Court of Chancery · decided 1819-10-18

BILL to redeem mortgaged premises. The defendant set np an absolute sale, by an assignment, absolute in terms, of the right of Mitchell in the land, and denied the fact of a loan. But the defendant, at the same time, admitted in his answer, that after the assignment was executed, he gave Mitchell, at his request, time to return the money, and take back the assignment.

Good law ✅— No negative treatment on recordhow we know

Decided 1819-10-18

How this case has been cited

Cited by 12 later decisions — most recently April 1903

9 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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The Chancellor.

¶1On the strength of the authorities, and on the proof of the loan, and of the fraud, on the part of the defendant, in attempting to convert a mortgage into an absolute sale, I shall decree an existing right in the *168plaintiffs to redeem. The Cases of Cotterell v. Purchase, (Cases temp. Talbot, 61.) Maxwell v. Mountacute, (Prec. in Chancery, 526.) Washburn v. Merrills, (1 Day’s Cases in Error, 139.) and the acknowledged doctrine, in 2 Atk. 99. 258. 3 Atk. 389; and 1 Powell on Mortg. 104. (4th London edit.) are sufficient to show, that parol evidence is admissible in such cases, to prove that a mortgage was intended, and not an absolute sale, and that the party had fraudulently perverted the loan into a sale. In this case, the admissions in the answer were sufficient to presume a mortgage, against the absolute terms of the assignment.

¶2Decree accordingly.