Dobson against Racey and others, 8 N.Y. 216

The opinion of the court was delivered by Ruggles,Ch. J. It is very satisfactorily shown that the land in controversy, during the year 1817, and for several years afterwards, was not worth anymore than the money for. which it was mortgaged to Charles Racey. Indeed, the evidence shows it to have been worth less than that amount. There is no room',; lerefore, for believing that Racey intended to get the land for less than it was worth, by conveying it to Harrison and receiving his reconveyance.

A foreclosure and sale at auction would probably have left Racey with an uncollectable balance due on his bond, and a bill of costs to pay. This may account for the course taken by Racey to acquire the equity of redemption, without imputing to him any intention to cheat Dobson. But the relation of principal and agent existing between Dobson and Racey, rendered Racey incapable of acquiring the title in that way, without the consent of Dobson. But with Dobson’s assent and direction the transaction was honest in itself and valid in law.

Dobson himself, if he had lived, could not have been allowed to redeem, after-having directed and approved of the conveyance to Harrison and the reconveyance from him. The complainant claiming under him, whatever would have cut off his right of redemption if he had lived, affects her as it would have affected him. If Mrs. Racey is a competent and credible witness, the complainant must fail. Her testimony shows that the arrangement for vesting the title in Charles Racey was made by. his direction, and received his subsequent consent and approbation.

I concur with the referee in the court below in the opinion that she Was competent. Before she was examined she had released her right of dower to the heirs of her deceased husband, so that she had no remaining interest in the land. But the complainant’s counsel insists that she is responsible to the complainant for the rents and profits since her husband’s death, as an intruder and wrong doer. But this is incorrect.

The complainant alleges in her bill that Charles Racey, the late husband of the witness, entered into possession under the mortgage, which the bill admits to be a valid and subsisting security: and the complainant prays the rents and profits, when ascertained, may be deducted from the amount due on the mortgage. The complainant claims no balance, but asks that she may redeem, on payment of what, (if any thing,) may be due after deducting the rents and profits. The witness, Mrs. Racey, can not, therefore, be made responsible by a decree in this suit for the payment of the rents and profits.

If the complainant should fail in this suit, the land belongs to the heirs at law of her husband, and Mrs. Racey is neither a gainer nor a loser. If the complainant succeeds in obtaining a decree for redemption, she may be a gainer, because she may be entitled to her distributive share of the balance due on the mortgage; but having no interest in the land, she can not be a loser. If she has any interest in' the event of the suit, it is an interest in favor of the complainant’s recovery, which does not disqualify her as a witness for the defendants.

Her contingent liability for costs is not sufficient to exclude her as, a witness for her codefendants. As to her credibility, there is nothing improbable in the facts which she relates. The property being mortgaged to Charles Racey for its full value, and more than its value, the equity of redemption was worth nothing; and it was the interest of both parties that the title should be vested in the mortgagee with as little expense as possible. Dobson and Racey were on friendly terms, and Dob-son owed Racey several hundred dollars over and above the amount due on the mortgage, and was unable to pay any thing.

The material facts to which she testifies are, that after Dobson left this state, and while he was in Darien, in Georgia, he wrote a letter to Racey in which, after stating that he should never return,- he expressed a wish that the title might be vested in Racey, in any way General Bogardus should think fit or advise, to save the expense of a foreclosure. And that after the conveyance of the equity of redemption and release of dower had been executed to Harrison, and reconveyed by Harrison to Racey, and after Mrs.

Dobson had been paid one hundred dollars for her dower right, Racey wrote to Dobson, informing him what had been done. That shortly afterwards a letter was received by Racey from Dobson, in which he declared himself perfectly satisfied with the arrangement that had been made. The conveyance by Racey, as attorney for Dobson, and by Mrs. Dobson, to Harrison, was executed in the presence of General Bogardus. On the part of the complainant it is contended that Mrs.

Racey’s testimony is effectually discredited by her answer; and it is true that in her answer she makes no mention of these letters, although she was called on by the bill to set forth all correspondence of any description relating to the affairs between Dobson and her late husband; and she further stated in her answer that she had no knowledge of any papers relating to transactions between those parties.

But when her answer was put in, she may hot have been aware of the materiality of the letters; and the omission to state them, although it may excite doubt as to her truth, does not seem to justify a belief that What she narrates in relation to them is a mere fabrication. We must take the testimony as true, or reject it as perjury. All the circumstances considered, I am not prepared to adopt the latter alternative. She is contradicted by Mrs. Marks, who was the widow of Dobson, in regard to the admission by the latter, of the receipt of one hundred dollars as a compensation for her right of dower. But Mrs.

Marks denies not only the receipt of the money, but the execution of her release; and the latter was proved before a master in chancery by the testimony of General Bogardus, the subscribing witness, and by the acknowledgment of Mrs. Marks, then Mrs. Dobson, before the master in chancery. As between these two witnesses where they contradict each other, I think no one who reads the testimony and looks at the documentary evidence can hesitate in giving credit to Mrs.

Racey, and although the case may admit of doubt, the safer and better conclusion is, that the arrangement to vest the title in Charles Racey was made with .the consent and approbation both of Mrs. Dobson and her husband. The decree of the court below ought, therefore, to be affirmed. Decree affirmed