Opinion
June Term, 1896.
Robert L. Harrison, for the appellant.
Charles B. Alexander, for the respondent.
It seems to us that the learned trial court erred in the disposition made of this case. There seems to be no doubt from the evidence given on the part of plaintiff herself that the consideration for this bond and mortgage, if any, was an indebtedness by defendant to the plaintiff's husband. The defendant, by his answer, denied that any such indebtedness ever existed, alleging that the title to the One Hundred and Sixth street lot was taken and held by him merely as an accommodation for the plaintiff's husband; that the money paid for the lot was not borrowed by defendant from plaintiff's husband, but was paid by the latter directly to the owner, as the purchase price of the property. This defense he attempted to prove on the trial by himself and the witness Brown. Some of the evidence offered for this purpose was competent and should have been received; and when so received it would have been a question for the jury whether there was an indebtedness by defendant to plaintiff's husband which constituted a consideration for the bond and mortgage. It is true that, even if defendant correctly alleged in his answer the original transaction between himself and the plaintiff's husband, it would still have been competent for him, after the death of plaintiff's husband, and with the assent of the persons then interested in the property, to retain title to the property, and give the bond and mortgage, for the money advanced by plaintiff's husband, for the purchase price thereof. The defendant, however, did not concede that he gave the bond and mortgage, under such circumstances, but testified that he gave them without any consideration, and solely for plaintiff's accommodation, and it was a question for the jury what the circumstances were under which the bond and mortgage were given. It could not be determined by the court. Some of the evidence offered was objectionable, and should not have been received. Some of it, however, was clearly competent and proper, and we think that under the rulings of the court, fairly considered, the defendant was denied an opportunity to give competent and material evidence in support of his defense, and that such evidence having been received, the questions raised would have been for the jury, and not for the court.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Judgment reversed and a new trial ordered, with costs to appellant to abide event.