#### Thomas Bascombe and Others, Appellants, *v.*Mary J. Marshall, Respondent, and Others, as Executors, etc., of Mary Ann Bascombe, Deceased, and Emma Lyons.

(No. 1.)

Second Department,

December 30, 1908.

Appeal — findings in suit in equity — suit to have absolute deed declared to be a mortgage — burden of proof — evidence of debt essential.

The Appellate Division will not reverse a determination of the trial court in a suit in equity on the facts unless the proof so clearly preponderates in favor of an adverse conclusion that it can be said with reasonable certainty that the court erred in its conclusions.

A plaintiff, seeking to show by oral proof that a deed absolute upon its face was intended as a mortgage, must establish the fact by clear and conclusive evidence beyond a reasonable doubt.

In such suit it is essential to establish a debt, for otherwise there can be no mortgage.

Evidence examined, and *held,*insufficient to show that a conveyance absolute upon its face was made to secure a loan.

Appeal by the plaintiffs, Thomas Bascombe and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bichmond on the 24th day of March, 1908, upon the decision of the court, rendered after a trial at the Bichmond Special Term, dismissing the complaint in a suit brought to establish that a deed is a mortgage.

*Alexander Thain [Otto G. Foelker*and *Charles A. Strauss*with him on the brief], for the appellants.

*George M. Pinney, Jr.,*for the respondent.

Jenks, J.:

We cannot reverse the court upon the facts unless the proof so clearly preponderated to an adverse conclusion that it could be said with reasonable certainty that the court erred in its conclusions. *(Stokes*v. *Stokes,*155 N. Y. 581; *Foster*v. *Bookwalter,*152 id. 166; *Lowery*v. *Erskine,*113 id. 52.) This we cannot say. In *Wilson*v. *Parshall*(129 N. Y. 225) the court, per Earl, J., say : “ The security of titles and sound public policy require that a party alleging that a deed absolute in form is, nevertheless, a mortgage, *517should show it by very satisfactory evidence, and where he attempts to show it by oral evidence, his proof should amount to more than a mere guess or surmise, or even inferences which are just as consistent with one theory of the deed as the other.” The plaintiff must establish his case by clear and satisfactory evidence. *(Matter of Holmes, No. 1,*79 App. Div. 266, and authorities cited; affd., 176 N. Y. 603.) It is true that there are certain facts which make for the plaintiffs, and which have been recognized as material and more or less cogent in like cases. The express consideration for the deed was $1, while the property was presumably worth at least $2,000, and hence it might be asserted that there was inadequacy of price. The grantor continued in possession of the realty for a number of years after the conveyance and until her death. She collected the rents thereof and she paid the taxes thereon throughout that period, and she was paid forthwith the proceeds of a mortgage made by the grantee as soon as the title was taken, and she repaid that debt. But as each case is to be decided on its own facts *(Murray*v. *Sweasy,*69 App. Div. 47), the probative force of these facts must be weighed with all of the facts in the case, and among them the fact that grantor and grantee were mother and daughter, and that the features which I have enumerated were consistent with the purpose to make provision for a child with a reservation of the enjoyment of the property during the mother’s life.

It was essential for the plaintiffs to establish the debt, else the conveyance could not be a mortgage. (Pom. Eq. Juris. [3d ed.] § 1196, and cases cited; *Saxton*v. *Hitchcock,*47 Barb. 225, and cases cited; *Kraemer*v. *Adelsberger,*122 N. Y. 476.) To this end the plaintiffs contended that at the time of the conveyance there was a loan of $400 made by the grantee to the grantor, and that a note was given for that money. And although there was evidence that at some time, possibly in 1890, four years before the conveyance, the grantee had lent $400 to the grantor, the testimony which would connect that loan with the conveyance is vague, indefinite and unsatisfactory, is given by interested witnesses who were shaken by their cross examination, and of whom one admitted that he had testified falsely as to one fact. There is no proof that the grantor was impecunious so as to be forced to raise so small a loan in such a way, and it does appear that she left a considerable estate.

*518The alleged defeasance is oral, and the proof thereof consists of the testimony of these witnesses enumerated who testify to the statements I have described and to certain alleged admissions of the defendant made to them or to their wives or husbands respectively at various times, which it is insisted indicate that the grantee held the property merely as security for this debt of $400. When an oral defeasance is relied upon, it is said that it must be established by clear and conclusive evidence beyond a reasonable doubt. *(Farmers*& *Merchants’ Bank*v. *Smith,*61 App. Div. 317; *Ensign*v. *Ensign,*120 N. Y. 655.) The expression of the Supreme Court of the United States is: “ The rule in cases of this kind is well settled. If the conveyance is in fee, with a covenant of warranty, and there is no defeasance, either in the conveyance or a collateral paper, parol evidence to show that it was intended to secure a debt, and to operate only as a mortgage, must be clear unequivocal and convincing, or the presumption that the instrument is what it purports to be must prevail. *(Howland*v. *Blake,*97 U. S. 624; *Coyle*v. *Davis,*116 U. S. 108; *Case*v. *Peters,*20 Mich. 298, 303; *Tilden*v. *Streeter,*45 Mich. 533, 539, 540.) ” *(Cadman*v. *Peter,*118 U. S. 73.) The testimony of admissions is of very little weight. *(Marks*v. *Pell,*1 Johns. Ch. 594.) There are no reversible errors, indeed none that, require comment.

The judgment is affirmed, with costs.

Woodward, Gaynor, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.