2 See N. Y. R. P. L. §§ 205-235, for New York statutory rules as to mortgages. - Ed.

3 For the modern New York doctrine, both at law and in equity, see Howell v. Leavitt, supra, p. 1043. - Ed.

46 New York, (605. - 1871.)

Allen, J. - The action is for equitable relief, and especially for an accounting by the defendant for the rents and profits and the avails of the sale of lands in Brooklyn, conveyed by the plaintiff to the defendant by deed absolute upon its face, but which, the plaintiff claims, was intended as a mortgage, to secure a loan of money. In 1859 the plaintiff applied to the defendant for a loan of $10,000, upon the security of the property named, and after some negotiation, the sum required was advanced to the plaintiff, upon the delivery of an absolute deed of the property; the defendant, by an agreement, executed and delivered simultaneously with the deed, but bearing date a day or two later, covenanting to sell and convey the same property to Mr. Pelton, upon the payment by him, within one year, of $12,500 and interest thereon, together with all taxes and assessments upon the premises, which the defendant should have paid.

The premises greatly exceeded in value the consideration paid for the deed; the grantor, Horn, was embarrassed and straitened for money. Mr. Pelton, the covenantee in the defendant's agreement, was counsel for the plaintiff in the transaction, aiding him in procuring the loan; and his testimony, as well as that of the plaintiff, was that the agreement was taken by him for the use and benefit and as the agent of the plaintiff, and to avoid the question of usury which, it was supposed, Horn could make, if the agreement to reconvey was directly to him; and the judge has found, that the transaction took that form for that reason and no other, which is one circumstance tending strongly to show that the parties regarded the advance of the money as a loan, and the conveyance a mortgage.

The judge has found, upon testimony somewhat conflicting, but greatly preponderating, in connection with surrounding circumstances, in favor of the findings, that the advance of money was a loan, to be repaid at the end of one year; that the deed was delivered to and accepted by the defendant as a security for the repayment of the loan, with an additional sum agreed upon, and not as an absolute sale and conveyance of the property; and that the agreement for a conveyance to Pelton was for the benefit of the plaintiff, and in place of an agreement to reconvey directly to him, and for the reasons before stated, and that the papers were delivered simultaneously, and as parts of one transaction; and as a conclusion of law, it was adjudged that the plaintiff was entitled to the account demanded, the property having been sold, and a redemption impossible. It is now too late to controvert the proposition that a deed, absolute upon its face, may, in equity, be shown, by parol or other extrinsic evidence, to have been intended as a mortgage; and fraud or mistake in the preparation or as to the form of the instrument is not an essential element in an action for relief, and to give effect to the intention of the parties. The courts of this State are fully committed to the doctrine, and, whatever may be the rule in other States, here in passing upon the question, we have only to stand upon the safe maxim of stare decisis. It is not enough, in view of the fact, that the adjudications have entered into and controlled business transactions, and become a rule of property, to authorize a reconsideration of the questions, that the rule has been authoritatively adjudged otherwise as a rule of evidence in common-law courts, and that eminent judges have contended earnestly against its adoption as a rule in courts of equity. Notwithstanding their protests the rule has been, upon the fullest consideration, deliberately established, and cannot now be lightly departed from. The principle was recognized by the chancellor in Holmes v. Grant, 8 Paige, 243, although it was not applied in that case, and had been before asserted under like circumstances in Robinson v. Cropsey, 2 Edw. Chy. R. 138; affirmed 6 Paige, 480.

It was expressly adjudged in Strong v. Stewart, 4 J. C. R. 167, that parol evidence was admissible, to show that a mortgage only was intended by an assignment absolute in terms; and to the same effect is Clark v. Henry, 2 Cow. 324, which was followed by this court in Murrey v. Walker, 31 N. Y. 399. In Hodges v. Tennessee Marine and Fire Insurance Co., 4 Seld. 416, the court says, that "from an early day in this State the rule that parol evidence is admissible for the purpose named, has been established as the law of our courts of equity, and it is not fitting that the question should be re-examined, and the cases in which it has been so adjudged are cited with approval." In Sturtevant v. Sturtevant, 20 N. Y. 39, the same judge pronouncing the opinion as in the case last cited, distinguishes between the case of a mortgage and trust, and it was decided, that while a deed absolute in terms, could be shown to be a mortgage. a trust in favor of the grantee could not be established by parol. And see Despard v. Walbridge, 15 N. Y. 374. The rule does not conflict with that other rule, which forbids that a deed or other written instrument shall be contradicted or varied by parol evidence. The instrument is equally valid whether intended as an absolute conveyance or a mortgage. Effect is only given to it according to the intent of the parties, and courts of equity will always look through the forms of a transaction and give effect to it, so as to carry out the substantial intent of the parties.

It is not objected that the agency of Pelton for the plaintiff in the transaction could not be shown by parol; and that fact being established the only question was, whether the agreement with Pelton, which was, in truth, with the plaintiff, was intended simply as an agreement to resell the premises at an advanced price, or a defeasance giving a right of redemption. The fact being established by competent evidence that the money advanced by the defendant was advanced as a loan, and not on the purchase of the lands, the relation of debtor and creditor was established, and that relation being established, it necessarily followed that the conveyance in connection with the agreement to re-convey, was intended by the parties as, and was a security for the debt, and the maxim, "once a mortgage, always a mortgage," secured the debtor a right of redemption until his equity was foreclosed by the judgment of a court of competent jurisdiction. Newcomb v. Borham, 1 Vern. 7; Clark v. Henry, supra.