Edward H. Moubray, Appellant, v. William J. Moubray and Susanna Moubray, Respondents

Edward H. Moubray, Appellant, v. William J. Moubray and Susanna Moubray, Respondents. Equity — he who seeks equity must do equity — when a grantor is estopped to assert that a conveyance by deed, is in fact a mortgage. In an action in equity brought by one Edward H. Moubray, against nis mother, Susanna Moubray and his brother, William J. Moubray to obtain an adjudication that a certain deed executed by said Susanna to William J. Moubray was void, and that the premises described therein be conveyed to the plaintiff, it appeared that the plaintiff had had in his hands certain money of the defendant, William J. Moubray, with which he bought and sold lands and erected buildings, including certain premises which, in and prior to the year 1890, the plaintiff conveyed to his mother, telling her that he did this as security for his brother, William J. Moubray, and also as a support for his mother in the case of the plaintiff’s death. In 1892 the defendant, William J. Moubray, began an action against the plaintiff in which he alleged that there existed a partnership between the plaintiff and himself in respect to the land speculation and asked for an accounting. The action was settled upon the understanding, among other things, that the property conveyed to the mother should be taken by William J. Moubray at a valuation and as a part of his share in the partnership assets, in accordance with which agreement the mother conveyed the premises to William and William executed to the plaintiff a general release. In the present action the plaintiff claimed this property upon the ground that his conveyance to his mother Was given simply as security for his indebtedness to William J. Moubray, and was, therefore, only a mortgage, the title remaining in the plaintiff, and that the subsequent settlement between the plaintiff and - the defendant, William J. Moubray, being by parol, did not pass the title, and that the release executed by. William J. Moubray' discharged the alleged mortgage. Held, that he who seeks equity must do equity, and that the plaintiff’s claim was clearly inequitable; That, further, as at the time of the settlement between the plaintiff and the defendant, William J. Moubray, the plaintiff had represented his conveyance to his' mother as being absolute in its nature, and the defendant, William J. Moubray, in reliance upon this statement, had. obtained a conveyance to himself, from his mother, the plaintiff was estopped from asserting that the conveyance' made by him to his mother was in fact a mortgage. Appeal by the plaintiff, Edward H. Moubray, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 8th day of May, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the- complaint upon the merits. The action was brought to secure an adjudiction that a deed executed by the defendant Susanna Moubray to the defendant William J.. Moubray was void, and that said Susanna Moubray be directed to convey the premises described therein to the plaintiff. ' Edward M. Shepard and II. II. Snedeher, for the appellant". . Josiah T. Marecm,. for the respondents. [MAJORITY — Cullen, J.:] Cullen, J.: . The plaintiff and the .defendant William are brothers and the defendant Susanna is their mother. The plaintiff is • a carpenter and builder by trade. The defendant William has beén a marine engineer. About the year 1878 an inheritance in Ireland fell to the defendant Williám. William being unable to give the .matter his personal attention, sent the plaintiff to Ireland to receive and convert ■ the property. ' The inheritance realized about $14,000. There is a dispute between the parties whether William gave the plaintiff one-half of the amount recovered or not, but the question is not material in the disposition of this case. The whole proceeds ' of" the property in Ireland were left in the hands of the plaintiff, who, on his return to this country, .with such proceeds as capital, bought and .sold lands and erected buildings. In 1888 and 1890' the plaintiff conveyed' the three plots of land, the subject of this action, to his mother Susanna.' As he testifies, he told her it was as seen-. rity for his brother William for the money he owed him and also as support for his mother in case of the plaintiff’s death. In 1892 the defend ant William instituted an. action against the plaintiff, claiming that he and Edward were partners in the business of buying lots, building houses and selling the same, and that the various pieces of property which then stood in the plaintiff’s name'were partnership property. He prayed, as relief, that an account be liad of the partnership transactions; that the property be sold and out of the proceeds he be paid the capital originally contributed by him and also half, of the profits. The plaintiff appeared in.that action. Before trial the suit was compromised and settled between, the parties. The. testimony of William’s lawyer in that" action, and also that of' the attorney and that of the counsel who appeared for the present plaintiff, Edward, is to the effect that, in the settlement and division of the property, the property in dispute, which had been conveyed to Susanna, was taken by William at a valuation, as a part of his share in the distribution of the partnership assets. At the time of the settlement William executed to Edward a general release and after-wards the defendant Susanna conveyed to William the ¡iremises previously conveyed to her by Edward. The plaintiff did not, on the trial, contradict the evidence as to the settlement, given both by his own attorneys and by the attorney of William. The claim of the plaintiff’s counsel, as I understand it, is that the conveyance by the plaintiff to his mother, being a security for the debt of William, constituted only a mortgage, and that, being a mortgage, it was merely a lien on the qiremises conveyed, the title to which remained in the plaintiff; that the subsequent settlement between the parties could not operate to pass the plaintiff’s title in the premises to the defendant William, because such agreement was wholly by parol, and that there was nothing in the agreement or the acts of the parties thereunder that would take it out of the Statute of Frauds, and the further claim that the release executed by William discharged the mortgage created by plaintiff’s conveyance to his mother, Susanna. Conceding for the moment this whole claim, both on the facts and the law, we think there is a complete answer to the plaintiff’s right to maintain this action. Assuming that the legal title to the property remains in the plaintiff, despite his settlement with William, his claim is concededly wholly inequitable, and a court .of equity would give him no relief no matter what his legal lights may be. The foundation stone of equity jurist prudence is that he who seeks equity must do equity. Therefore, in this case equity will do nothing for the plaintiff but leave him to enforce his rights as best he may. But, on the facts, we think that the plaintiff has no title to the lands in controversy. He conveyed the premises to his mother as security for his debt-to William. That conveyance, as the transaction stood at the time, may have constituted nothing more than a mortgage. The plaintiff testifies that the transaction a§ to that conveyance was wholly between his mother and himself, and William was not a party to it, nor is he shown to have known, until a subsequent time, anything concerning the terms and conditions on which the conveyance was made. Subsequently and before the settlement plaintiff, in response to defendant William’s demand for the payment of his share of the moneys, told him: “ Here is the stable and the house up at Seventh avenue; I made it over in the old .woman’s name for you.” Ho intimation was given that the conveyance to the mother was simply a mortgage. Relying on that statement the subsequent settlement between the parties was made, the defendant AYilliain assuming the burden of obtaining a conveyance to himself from his mother, a conveyance which -was afterwards made. We are clear that the character and effect of the conveyance by the plaintiff to his mother was not determined by the transaction that occurred at the time, but by what subsequently took place between the plaintiff and his brother AVilliam, the sole parties in interest; and that from the time that such settlement was made the deed executed by the plaintiff operated as an absolute conveyance, or, at least that he was estopped from asserting to the contrary, the defendant William having settled with him on the strength of his statement that the conveyance was absolute. The judgment appealed from should be affirmed, with costs. All concurred, except Bartlett, J., not sitting. Judgment affirmed, with costs.