COURT OF APPEALS.

#### Charles H. Van Dusen, as receiver of Philo Haskins, agt. Daniel Worrell.

*Parol evidence.is*properly admissible to prove* that a'warranty deed; absolute 'on its ' face^was-given to secure a specific sum of money, in the-natyre-of a mortgage.

*January Term,*1867.

This was. an action, in equity, brought-by the receiver of Philo Haskins, claiming to recover from the defendant, the proceeds of the sale of certain lands, or of the value thereof, with certain deductions, on the ground that the lands were conveyed to the defendant-by way of mortgage, for the security .of a certain debt,. The defendant claimed.to-be the absolute owner, and denied all. liability.. The referee found in favor of the plaintiff, and the general term of the eighth district affirmed his judgment. The facts are more particularly stated in the opinion, of the court.,

P. L. Ely, *for appellant.*

John T. Murray, *for respondent.*

Hunt, J.

On the 17th day of June; 1846, Philo Haskins; being the owner of about forty-eight acres of land, executed to the defendand-and one Joshua Worrell his mortgage upothe same; to seeure the payment of two hundred dollars, and-accompanied, the same by his bond. On the 21st- day of January, 1846, Joshua assigned his interest in the bond and *287mortgage to the defendant. On that day the defendant lent to Haskins a further sum of three hundred dollars, and Haskins and wife executed to him a warranty deed of the forty-eight acres. This deed was given as securty for the three hundred dollars then loaned, and for the amount remaining unpaid on the bond and mortgage before mentioned. The defendant and his wife afterwards sold the premises to William B. Follett for the sum of fourteen hundred dollars. This action is brought, asking a judgment that Worrell was a trustee of Haskins for the balance, after deducting the three hundred dollars loaned, the amount due on the bond and mortgage, with a reasonable compensation for the trouble of the defendant, and that he.be directed to pay over such ballance. The referee found a balance of twelve hundred and twelve dollars to be due to the plaintiff as receiver of Haskins, for which he rendered judgment in his favor, and the general term of the eighth district affirmed his judgment. The defendant now appeals to this court.

But a single question is presented for our consideration, to wit: was it competent for the plaintiff to prove that the deed from Haskins to Worrell, although in form an absolute conveyance, was in fact, by the engagement of the parties, a mortgage merely? This question was decided in favor of the respondent in *Hodges*agt. *Tennessee Fire and Marine Insurance Co.*(4 *Seld.*4.16), and was again decided by this court in the same manner, in June, 1866, not yet reported, in the case of *Loveridge*agt. *Oyer.*

Judgment should be affirmed with 10 per cent damages.

All affirm.

Parker, J.

The parol evidence admitted by the referee upon the trial, tending to show that the deed from Haskins to the defendant was intended as a mortgage, was properly received. *(Hodges*agt. *Tennessee Ins. Co.,*4 *Seld.*416; *Sturtevant*agt. *Sturtevant,*20 *N. Y. R.*39.)

*288. The referee found the fact that it was intended as a mortgage, upon sufficient evidence. Hence lies conclusion of law that the plaintiff was entitled to recover the money received by defendant upon a sale of the premises, after deducting the sums and interest which it was given to secure, and defendant’s reasonble charges for effecting the sale, was one of which the defendant has no right to complain.

The iudgment appealed from should be affirmed with costs.

All affirm.