Economy Homes Company, Appellant, v. Adolph Voigt and Others, Respondents

Economy Homes Company, Appellant, v. Adolph Voigt and Others, Respondents. [MAJORITY] Judgment reversed, with costs, and judgment rendered in favor of the plaintiff, with costs, upon the ground that no estoppel was established against the plaintiff in favor of the defendant, to prevent plaintiff from insisting that the deed was and is a mortgage merely, as by the terms of the written agreement between the parties it undoubtedly was at its inception, and further, that no equity in favor of defendant has arisen which cannot be fully protected by giving him a prior lien upon the property and the proceeds of its sale, if sale be had. Due conclusions of law are made as follows, viz.: 1. That the said deed was and is merely a mortgage by plaintiff to defendant to secure payment of said indebtedness and interest. 2. That defendant has a prior lien to that of said mortgage upon said premises for the balance of his disbursements in reference to the property over his receipts therefrom, and that plaintiff be entitled to have the defendant account for said disbursements and receipts. 3. That plaintiff is entitled to redeem the premises from said mortgage by paying.to defendant the amount of said indebtedness and interest and any balance found due to defendant upon said accounting. 4. That a referee to take the said account shall be appointed by the Special Term of this court upon due application made to it therefor. 5. That if plaintiff shall fail within thirty days after the determination as aforesaid to pay the amount due from plaintiff to defendant, then the said real estate shall be sold by the said referee, and out of the proceeds of such sale there shall be paid: (a) The expenses of the sale, including the referee’s fees; (b) to the defendant the balance which upon said accounting may be found to be due to defendant, and also the said indebtedness and interest; (c) to the plaintiff any balance remaining. Jenks, P. J., Mills, Rich, Blackmar and Jayeox, JJ., concur. Settle order on notice.