Hunt, J.
On the 17th day of June, 1846, Philo Haskins, being the owner of about forty-eight acres of land, executed to the defendant and one Joshua Worrell, his mortgage upon the same, to secure the payment of $200, and accompanied the same by bond. On .the 21st day.of January, 1846, Joshua assigned his interest in the bond and mortgage to the defendant. On that day the defendant lent to Haskins a further sum of $300, and Haskins and wife executed to him a warranty deed of the forty-eight acres. This deed was given as security for the $300 then loaned, and for the amount remaining unpaid on the bond and mortgage before mentioned. The defendant and his wife afterward sold the premises to Wm. B. Follett for the sum of $1,400. This action is brought asking a judgment that Worrell was a trustee of Haskins for the balance, after deducting the $300 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 balance. The referee found a balance of $1,212 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 id fact, by the express agreement of the parties, .a mortgage merely % This question was decided in favor of the respondent in Hodges v. Tennessee Fire and Marine Insurance Co. (4 Seld. 416), and was again decided by this court in the same manner in June, 1866, not yet reported, in the case of Loveridge v. Oyer.
Judgment should be affirmed with ten per cent damages..
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 v. Tennessee Ins. Co., 4 Seld. 416; Sturtevant v. Sturtevant, 20 N. Y. 39.)
.The referee found the fact that it was intended as a mortgage, upon sufficient evidence. Hence his 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 reasonable charges for effecting the sale, was one of which the defendant has no right to complain.
The judgment appealed from should be affirmed with, costs.
Judgment affirmed.