Daubenspeck v. Platt

Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring. This is an action brought to redeem certain real estate from an alleged mortgage executed by the plaintiff to the defendant Platt, and to have a deed of the premises from Platt to the other defendants set aside and declared void.

The averments of the complaint, so far as they are material for this decision, are, in substance, that on the twenty-eighth day of October, 1861, the plaintiffs borrowed of Platt the sum of $6,000, and as security for the repayment executed to him a deed of the premises, being a tract of three hundred and twenty acres, absolute on its face, and that at the same time, as a part of the transaction, a defeasance in the form of a separate agreement was executed between the parties, by which the plaintiffs agreed to pay to Platt $6,000 and interest, on or before the first day of March, 1862, and he agreed to reconvey to them the premises on that day ; that the deed was recorded but the defeasance was not recorded; that between the first and tenth days of March, 1862, the plaintiffs have paid to Platt the sum of $4,570, by a transfer of a quantity of brandy and wine, the product of said premises, and since the tenth day of March, 1862, have offered to pay the balance due on said loan ; that at and ever since the making of said instruments the plaintiffs have been in the open and notorious possession of two hundred and twelve acres—part of said tract; that on the tenth day of March, 1862, Platt conveyed the premises to the other defendants, and that at the time of such conveyance the grantees knew of the existence of the said agreement to reconvey. The complaint then prays that an account may be taken of the balance still due to Platt, and that the plaintiffs be allowed to redeem, and that upon payment the deed from them to Platt be annulled, and the deed from Platt to the other defendants [334]be declared void, and asks for certain other special relief, and for such other or further relief as to equity and justice may appertain.

The answer of Platt denies that the transaction was a loan, but avers that it was a purchase, and states that the agreement to reconvey was made after the sale, and denies any payment by a transfer of any brandy or wine or otherwise, or any offer to pay, or tender of any sum of money pursuant to said contract of defeasance.

The other defendants deny any knowledge of the existence of said agreement of defeasance at the time of their purchase, and aver that they are bona fide purchasers for cash paid at the time of purchase.