#### William Patterson, plaintiff and respondent, *vs.*William G. Patterson, defendant and appellant.

1. A complaint in an action to set aside conveyances and other instruments affecting real property, on the ground that they were obtained by fraud, is not sustained by proof that they constitute a mortgage from which the plaintiff has a right to redeem. This is hot a mere variance, but a failure to prove the cause of action in its entire scope and meaning. ,

2. If this objection be taken on a motion, at the trial before a referee, to dismiss the complaint upon the plaintiff’s evidence, it is available on appeal from a judgment for the plaintiff upon the referee’s report in his favor, although no exceptions were taken to the report upon the ground that the cavtse of action, as found, was' not that set forth in the complaint.

(Before Moncrief, Robertson and *Monell, JJ.)*

Heard October 6,1863;

decided October 7, 1863.

This was an appeal by the defendant from a judgment in the plaintiff’s favor entered upon the report of Murray Hoffman, Esq. referee, before whom the issues in the action were tried.

The complaint alleged, in substance, that on the 9th of November, 1853, the plaintiff was seised of the legal title, and was owner and in possession of premises in the city of New York, known as 313, 315 and 317 Bleecker street. That his son, the defendant, to whom, by reason of his own ill health, the management of his business had been intrusted, fraudulently procured the premises to be sold by the sheriff upon a judgment for costs against the plaintiff, in a suit instigated by the son for that purpose. That the son bought another judgment against him (recovered by one Newell) and also fraudulently induced him to confess a judgment to him, the son, upon both of which the son redeemed the premises from the sheriff’s sale, and subsequently, also, fraudulently induced him to give a quit-claim deed of the premises, upon a promise to reconvey them ; finally, that he incumbered the title, and had refused to reconvey. The prayer for relief was that the defendant reconvey ; that the plaintiff be declared the true owner ; that an accounting be had; and that a certain mortgage *185described in the complaint be declared a lien on adjoining premises, belonging to the defendant, &c., and for an injunction pending the action, and for costs.

The answer admitted the making of the conveyances, &c.; but denied the fraud, and also alleged, as a third defense, that the defendant being the owner of adjoining premises, Nos. 319 and 321 Bleecker street, and relying on, the title he had acquired to the premises now claimed by the plaintiff, had erected, with the knowledge and assent of the plaintiff, buildings partly on both premises, and that they could not be ' removed, and would be useless to the defendant without the land in question.

The particulars of the evidence given upon the trial, which was very conflicting, are sufficiently indicated in the opinion of the court.

After the plaintiff rested, the defendant moved to dismiss the complaint on the grounds :

1. That no cause of action had been proved.

2. That the facts proved would not alone entitle the plaintiff to recover any thing.

3. That the cause of action alleged in the complaint was unproved in its entire scope and meaning.

The referee denied the motion, and the defendant excepted.

After the defendant had rested, the case was closed, and the referee made a decision merely holding the defendant to be a mortgagee in possession. But he reopened the case on the-plaintiff’s motion, to allow him to adduce testimony as to the respective and relative values of the property in question, and the adjoining property of the defendant. After such testimony was admitted, the defendant offered to prove that he received no part of the rents of the buildings No. 313, 315 and 317, intermediate June, 1861, and May, 1862. That during that time he paid all outgoings in respect of the premises’; but the rents were received by the plaintiff and appropriated to his own use. He also offered to prove that for long prior to June, 1861, he did not receive rents enough from said premises, Nos. 313, 315 and 317, to satisfy the actual necessary outgoings in *186respect of said premises. The referee refused to admit this testimony. To which, refusal the defendant excepted. . The defendant also offered to' prove by his own testimony and that of the plaintiff, that neither party intended by the several transactions between them, by any or either of them, to create the relation of mortgagor and mortgagee, The referee also refused to admit this testimony, to which refusal the defendant also excepted.

The plaintiff being then recalled in his own behalf, the defendant’s counsel asked him, If when he gave the quit-claim to his son, he intended it as a mortgage ? Also, Was it not in order that he should hold the property in trust ? Both these questions were excluded upon objection, and the defendant excepted to such exclusion.

The referee, in the written opinion accompanying his report, stated that it was not often that he had had, upon evidence, a more uncertain case to deal with j that he thought, after much consideration, that the conclusion best warranted was, that the relation of mortgagor and mortgagee in substance was the original true relation of the parties to each.other ; that the property was taken and held as security for the advances made by the defendant, and upon that basis the rights and claims of each were to be adjusted and determined.

As a matter of law, he adjudicated by his report, that the plaintiff was entitled to a judgment, directing the defendant to convey and release to him the premises, now known as Nos. 313, 315 and 317 Bleecker street; upon his delivering to such defendant, a full and sufficient release and discharge of the adjoining premises from the lien of the mortgage specified, and also upon paying to the defendant the sum of $1134.15, being the difference between the sum he had found due to the defendant, from the plaintiff, and the proportion of such mortgage, which the defendant ought to bear. And that the plaintiff should release and convey to the defendant all that part of the property mentioned in the sheriff’s deed not comprised within the boundaries of .the parcels, Nos. 313, 315 and 317 Bleecker street.

*187Judgment having been entered accordingly, the defendant now appealed.

*John Townshend,*for the defendant, appellant.

' I. There was a failure of proof, and the complaint ought to .have been dismissed for that cause, on the defendant’s motion, *(Salters*v. *Genin,*3 *Bosw.*250. *Walter*v. *Bennett,*16 *N. Y. Rep.*250. *Stearns*v. *Tappin,*5 *Duer,*294. *Kelsey*v. *Western,*2 *Comst.*500. *Texier*v. *Gouin,*5 *Duer,*389. *Moore*v. *McKibbin,*33 *Barb.*246.)

II. The facts proved at the close of the plaintiff’s case did not constitute any cause of action, and the defendant’s motion to dismiss the complaint ought to have been granted.

(a.) The fact of the defendant’s obtaining the deed on a *promise*to reconvey; even if it raised a trust for the plaintiff, was a parol trust which the law does not recognize as against the plaintiff’s deed, absolute on its face. *(Sturtevant*v. *Sturtevant,*20 *N. Y. Rep.*40.)

*(b.)*Moreover, the deed from the sheriff to the defendant being unimpeached, the plaintiff, at the time of the quitclaim, had nothing to convey and nothing to be conveyed.

III. The sudden finding by the referee, that the parties stood in the relation of mortgagor and mortgagee, was a surprise to both, unwarranted by the evidence, and contrary to the evidence and the whole case made by the plaintiff. It was an hypothesis adopted by the referee merely to reconcile the testimony of both parties.

IV. If a deed absolute on its face, may be proved by parol to be a mortgage, the defendant ought to have been equally allowed to prove that the deed in this case was not given as a mortgage. *(Despard v. Walbridge,*15 *N. Y. Rep.*374.)

V. The defendant proved the third defense set up in his answer, and the facts proved estopped the plaintiff from after-wards insisting that the conveyance to the defendant was other than it purported to be. The defendant’s buying the gore and building was inconsistent with a trust or mortgage. *(Palmer**188v. *Smith, 10*N. *Y. Rep. 303. Hall*v. *Fisher, 9 Barb. 17. Walter*v. *Post,*6 *Duer,*363.)

.VI. No attempt was made to contradict the testimony of the defendant, that in some years the property did not make up the expenditures. Yet the referee, in consequence of liis considering it impossible to state an account between the parties with accuracy, concluded to make the defendant no allowance for his excess of expenditure.

VII. A mortgagor can not at his option, abandon the right to redeem a part of the premises. If he comes in to redeem he must be ready to redeem all. To allow him to elect which part he will redeem, and which abandon, would lead to great injustice.

VIII. The judgment is so indefinite as to render it impossible to carry it into effect, or to know whether or not it has been complied with,

*Sterne Chittenden,*for the plaintiff, respondent.

By the Court, Robertson, J.

Although no exception was taken to the report of the referee, upon the ground that the cause of action, as found, was not that set forth in the complaint, which seems to be necessary in some cases, *(Belknap*v. *Sealey,*14 N. *Y. Rep.*143; *Parsons*v. *Suydam,*3 *E. D. Smith,*280;) yet the objection was distinctly taken on the motion to dismiss the complaint, after the plaintiff ■’s evidence had been introduced, that he had not established his cause of action, and, as will presently be seen, all subsequent evidence was admitted for another purpose, that of taking an account. A subsequent finding by the referee of an entirely different cause of action, although fully sustained by proof admitted for the purpose, would still less deprive the defendant of the benefit of such an objection, since in fact it would be an admission that it was well founded.

This becomes the more proper, as the referee, after deciding upon mere circumstantial testimony, that the parties stood in the relation of mortgagor and mortgagee, so as to entitle the *189plaintiff merely to redeem the premises instead of entirely avoiding the instruments assailed, prevented the defendant from introducing any direct testimony to disprove the existence of such relation. Heither party had charged or admitted it in the pleadings, or apparently attempted knowingly to prove or disprove it. Such an exclusion of evidence involves in the first place the question, how far it was a proper exercise of discretion, and not the deprivature of an absolute right. The order of introducing evidence, the recalling of a witness already examined, to prove a new fact or explain his testimony, and the opening of the case to allow new evidence, is within such discretion. A general introduction of new evidence on one side, as to any particular point not before touched, without a like permission to the other, would not be a fair exercise of it. The cutting off of testimony on one side, as to material points, would thus by the favor of the court to his adversary, after he had closed his case, work great injustice by preventing any rebuttal of that offered to make up such deficiency. Although the plaintiff’s testimony may have been sufficient to sustain the case, as found by the referee, it was equally pertinent to that set out in the complaint, notwithstanding that nothing was said therein, as will appear hereafter, of advances, or a security or mortgage therefor. It is evident that, although the referee had already determined in his own mind, that the transactions between the parties were loans secured by a mortgage, and that he could not decree any relief according to that view, until the value of the different parts of the premises, as well as the amount of advances had been proved; so that the evidence could not be closed, until after such proof of value had been given. Yet evidence of value would have some bearing on the nature of the instruments executed to the defendant. If it greatly exceeded the amounts advanced by him, it might tend to show them to have been intended to be mortgages, or something else than absolute conveyances. The permission given to the defendant, to give proof of value to rebut that conclusion, would not the less render the exclusion of evidence on his part to prove there was no mortgage *190improper; a.s he was entitled to introduce, if any, all kinds of evidence to do so. He was permitted, it is true, to introduce evidence of advances of money, but that merely affected the terms of redemption and the state of the accounts, although in some measure it might have borne on the question of the nature of the instruments. He was even prevented from showing that the property did not yield enough, part of the time, to pay expenses, or that the plaintiff appropriated the rents, during 'another part, to his own use.

If it be possible, However, that the exclusion of the evidence on the defendant’s part to disprove any relation of mortgagor or mortgagee was a mere exercise of discretion, although stretched to its utmost limits, and as a question of surprise only be available as a motion for a new trial at special term *;*there are still questions involving the merits embraced in the appeal taken.

I have been unable to reconcile the cause of action as found by the referee with that made in the complaint. That does not state any money advanced or agreed to be advanced by the defendant; on the contrary, it alleges as evidence of the continuance of the plaintiff's ownership, his payment of the Newell judgments, his furnishing the money to the defendant to pay those of Crosby and McDonald under which the sale was made, and his payment of interest on the mortgage, the taxes, water rates and expenses of repairs and alterations on the property, as-well as his receipt of rents from tenants, and even apparently from the defendant. There were no other moneys advanced or to be advanced but those. The plaintiff alleges in, his complaint that the judgment confessed by him was given to enable the defendant to redeem and on his promise to convey the property to the plaintiff as soon as he had done so. So too he alleges therein that the quit-claim was given to enable the defendant to procure a new loan and on a promise of reconveying immediately afterward. No terms, qualifications or conditions are stated as to such reconveyance; on the contrary, it is alleged to have been peremptorily demanded. There is no pretense of the defendant taking security for any sums to be *191advanced, or any admission of any advance. The assumption that the instruments assailed by the complaint were taken as security for sums advanced and to be advanced, and valid as mortgages, contradicts the main charges in it. There is no evidence of any promise to reeonvey, except the plaintiff’s testimony ; he does not seem able to state any terms or conditions of reconveyance, and the defendant utterly denies the making of the promise itself.

The referee has found that the plaintiff relinquished his right to the part of the premises on which Nos. 319 and 321 Bleecker street are built, but has not stated whether this was done by writing or orally. There is no evidence of any such written relinquishment. The only ground of inferring one of any kind was that the plaintiff did not not collect the rents of' them, but told the builder (Rodgers) that he did not own the rear ground.

It will not be necessary to inquire minutely into the question whether there is evidence in the case to sustain the referee’s findings, which must ultimately rest wholly upon the superior reliance to be placed upon the plaintiff’s testimony rather than upon that of the defendant, notwithstanding the disproof of the former in various particulars, such as his payment of different judgments, his ignorance as to such judgments, and his never having held himself out as agent or given receipts as such, his contradiction of himself, and the deplorable uncertainty and feebleness of his memory in many particulars, owing perhaps to his age. And yet the most important parts of the defendant’s answer are virtually sustained by the report. That, and the account on which it is based, concede that the defendant bought the Newell judgment, that the moneys' for which the judgment was confessed were really due, that he paid his own moneys to redeem under the sheriff’s sale, employed the moneys received from the savings bank to pay the Loan and Trust Company, bought and paid for the gore, and put up the buildings on it at his own expense, and paid $500 on account of the mortgage on the premises. The plaintiff undoubtedly let the premises and occupied part, received *192the rent of the rest and expended part of it for the support of himself and family, and furnished moneys therefrom to the defendant to pay taxes and incumbrances. The only question is, in what capacity he so received and expended the rents. The defendants claimed that the plaintiff acted as agent, and he is supported by the plaintiff’s own statements in writing and under oath, and his denial of ownership, and the fact that for nearly two years he made no attempt to get back his title, and did some further act to preclude himself from claiming the land on which 319 and 321. Bleecker steeet stood. The defendant also stated that the plaintiff retained the amount expended on the understanding he was to get his living out of the premises after paying taxes and incumbrances. This does not seem to be a very unnatural arrangement between a father and son, where the latter has twice saved the' property from sacrifice by taking up judgments and redeeming it, and .where the former has no1 means to pay off the latter advances ; and it is at least equally reconcilable with the facts proved, as the existence of a mortgage.

The explanation given by the learned referee of the plaintiff’s statements of being agent, to wit, that the defendant was mortgagee in possession, is unsatisfactory. The plaintiff claims he was never out of possession, he continued to occupy part of the premises, rented the rest, received the rent and paid the incumbrances as owner ; the defendant occupied only a part, and for that the plaintiff says he paid him rent. One or the other statement is clearly untrue. There is a singular deficiency in this case of corroborative testimony apparently within reach on both sides. It would be very dangerous, after the lapse of ten years, to take away a title derived under hostile proceedings-against the plaintiff, by converting an absolute deed from a sheriff into a mere mortgage to the party to whom it was given, solely on the testimony of the supposed mortgagor if so contradictory and contradicted.

The promise to give a deed back, could not convert the defendant into a mortgagee. He might be rendered a trustee, in case he had induced the plaintiff, himself, to abstain from *193redeeming; but there is no evidence of. that. Any misrepresentation in regard to the quit-claim deed could not deprive the defendant of the title which he acquired by redemption under the Newell judgment, independently of his right to redeem under his own; and which he could havé acquired without any assistance from the plaintiff.

But the main difficulty still remains, that the referee has given judgment in a cause of action as found hy him, entirely different from that sued upon and set out in the complaint. That .was for fraud in obtaining a deed from the sheriff and a •quit-claim deed from the plaintiff. The fraud claimed, consisted in instigating a suit in the plaintiff’s name, allowing a judgment to be obtained against him for attorney’s fees in such suit, omitting to apply moneys furnished to pay such claim, procuring a sale by a sheriff, using a previous judgment that had been paid by the plaintiff, and 'one newly confessed, to redeem from such sale, inducing the plaintiff to believe that the title was still in him, and procuring a quit-claim on a promise forthwith to reconvey, and a false representation of the object of procuring it. Such fraud not being proved, the referee has found a cause of action on contract, by which the defendant, without any fraud, took the Newell judgment, sheriff’s and quit-claim deeds merely as security for moneys advanced and to be advanced. This is not a case of variance under the 169th section of the Code,' but a failure tot prove the cause of action in its entire scope and meaning. *(Saltus*v. Genin, 7 *Abb.*193. *Texier*v. *Gouin,*5 *Duer,*389. *Walter*v. *Bennet,*16 *N. Y. Rep.*250. *Kelsey*v. *Western,*2 *Comst.*500.) An amendment of the pleadings to correspond with such findings, even if it could now be made, would change, substantially, the claim; an action to set aside entirely for fraud being entirely different from one to redeem from a mortgage.

No stronger case can well be imagined of surprise, than by proving an entirely different cause of action from that set out in the complaint. Had the pleadings been at common law, as formerly, a replication which had set up the cause of action *194such as that found, would have been such a departure from the complaint as to make the replication defective. The issues were tried on a question of fraud, to which alone the testimony was directed. • The referee, although, held that by indirection and inference it established circumstantially a contract not set up in the complaint, yet refused to allow the defendant to introduce direct testimony to rebut such inference. The report-therefore was unwarranted by the evidence.

The judgment should he reversed, and the order of reference discharged; a new trial to he had, and the costs of the appeal to abide the event.