This action is brought to recover the possession of a lot of land in the village of Corning, in the county of Steuben, the possession of which, it is claimed, is unlawfully withheld from the plaintiff by the defendant.
The defences are, first, a general denial; and, second, that the defendant’s husband, at some time prior to the 25th February, 1858, applied to the plaintiff to advance for him, to one Berry so much money as would be necessary to pay Berry for said lot of land, after applying certain county orders for the payment of money that the defendant’s husband then held and owned, and to take a conveyance of said premises from said Berry, and hold the title as security for the money he should so advance, and give time to defendant’s husband to pay for the same, and, upon being paid the sum so advanced, with interest, to convey to defendant’s husband or herself the title to said land. The plaintiff, in pursuance of said paroi agreement, advanced the money to Berry, and took the title. Defendant and her husband went into possession, and he remained in possession until his death, and the defendant has remained in the possession ever since.
It is insisted by the defence that the plaintiff is merely a mortgagee, and, as such, cannot recover in ejectment.
The plaintiff insists that he is owner in fee; that the defendant is a purchaser in possession under a paroi contract, which she has neglected to perform, and that the plaintiff is entitled to a judgment; and the remedy of the defendant, if any, is to tender the balance of the purchase-money unpaid, and apply in equity for a specific performance of the paroi contract.
*324• On the trial, the defendant gave evidence tending to prove the agreement, as set out in the answer; the advance by the plaintiff of the purchase-money to Berry; the taking of a conveyance by plaintiff; the advance of a part of the purchase-money by defendant’s husband, and' the subsequent payment to plaintiff of further sums to apply in payment of the sums advanced by plaintiff; the possession of the premises by defendant and her husband, and the demand by the plain; tiff of possession.
The plaintiff gave evidence tending to prove that the transaction between him and defendant’s husband was a sale by paroi of the premises, to be conveyed to him or the defendant when fully paid for; and that a part only of the purchase-money had been paid.
The plaintiff’s counsel asked the court to charge the jury that, if the amount advanced to Berry for the purchase-money has not been repaid to him, and if defendant’s husband made default in payment thereof, the plaintiff is entitled to.a verdict. The court refused so to charge, and plaintiff’s counsel excepted.
The same counsel requested the court to charge that plain-, tiff was entitled to a verdict. The court refused so to charge. Defendant’s counsel excepted.
The court then proposed to counsel to consent that the jury be instructed to find upon particular questions of fact, to be stated in writing; and that after verdict on such questions, the cause be decided by the court. The counsel assented to this proposition, reserving the right to except to the submission of any particular question that should be deemed immaterial, or, otherwise, improper.
The court, thereupon, submitted to the jury two questions:
1st. Was the deed of the premises in question taken by the plaintiff under a paroi arrangement with Daniel D. Carr, that the purchase should be made, and the purchase-money, or some portion of it, should be advanced by the plaintiff for the benefit of Daniel D.; that the plaintiff. should hold the title as security for the repayment to him of the sum advanced for purchase-money, taxes, and insurance; that on repayment *325of such advances the premises should be conveyed to said Daniel or his wife ?
2d. Was the deed taken by plaintiff on a paroi arrangement with D. D. Carr, that plaintiff should sell and convey said property to him on payment of the price paid by plaintiff, and taxes and insurance?
The first question was answered in the affirmative. The second in the negative.
Upon these findings, the court ordered judgment for the defendant.
By section 261 of the Code, the jury can only be required to answer specific questions of fact when they render a general verdict. As a general verdict was not rendered in this case, the jury could not regularly be called on to answer the questions submitted to them.
The jury was at liberty to find either a general or special verdict. They have done neither; and were it not for the consent of counsel to the mode adopted of arriving at a verdict, we should be compelled to send the case back, on the ground that the trial had was a mistrial.
We can only give effect to the agreement entered into by counsel, by holding the question submitted to the jury, and its finding thereon a special verdict, and thus treating it; we can only inquire whether, upon the facts, the judgment appealed from, is right. We cannot go behind the special verdict to ascertain whether the findings are justified by the evidence, nor whether any errors were committed in the admission, or rejection of evidence. (Graham’s Practice, 2d cd., 318.)
Transforming the first question and answer into a special verdict, the finding would be that the plaintiff took the deed of the premises under a paroi arrangement with D. D. Carr; that the purchase should be made, and the purchase-money, or some part of it, should be- advanced by plaintiff for the benefit of said D. D. Carr; and that plaintiff should hold the title as security for the repayment to him of the sum advanced for purchase money, taxes, and insurance; and that *326on repayment of such advances, the premises should be conveyed to said D. D. Carr, or his wife. In addition to this, we have it found that the deed was not taken by plaintiff on a. paroi arrangement with D. D. Carr, that plaintiff should sell and convey said property to him on payment of the price paid by plaintiff, and taxes and insurance.
' On these facts, it cannot require either argument or authority to show that the defendant was entitled to judgment.
The plaintiff is found to be a mere mortgagee; and as such he cannot maintain ejectment.
In order to create the relation of mortgagor and mortgagee, it is not necessary that there should be an instrument, in writing, under seal, or that the title should be conveyed by the person claiming the rights of mortgagor. In the following cases the person held to be a mortgagee, obtained the title from a third person, under an agreement with the person claiming, and held to be mortgagor, to purchase the same, and hold the title as security for the money advanced to acquire the title. (Brown v. Lynch, 1 Paige, 147; McBurney v. Wellman,. 42 Barb., 390; Same v. Same, affirmed in the Court of Appeals; Brown v. Jones, 46 Barb., 400; Ryan v. Dox, 34 N. Y., 307.)
It is not material what name is given to the relation created by the agreement between the parties; whether that of mortgagor and mortgagee, or of trustee and cestui que trust, the result is the same in either case. The party holding the title cannot turn the one for whose benefit he holds, out of possession in an action at law.
If we could look at the evidence, it would be seen that the plaintiff received of defendant’s husband some $300,- at or about the time of the purchase, to be invested in the premises in question; and with this money in his hands, he cannot, under the agreement, be permitted to repudiate it and pocket the money.
A court of equity will hold him to be a trustee, and, as such, bound to convey to the defendant on being reimbursed what he has advanced. (Swinburn v. Swinburn, 28 N. Y., *327568 ; Siemon v. Schurck, 29 N. Y., 598; Lounsbury v. Purdy 18 N. Y., 518.)
Opinion of Woodhtjee, J., in McBurney v. Wellman, in the Court of Appeals.
In the same opinion it is held that the plaintiff cannot maintain ejectment against the defendant, whether the relation of the parties is that of mortgagor and mortgagee, or trustee and cestui que trust.
Ho time is fixed for the payment of the plaintiff’s advances; and so long as the defendant is not shown to be in default, she cannot be turned out of possession.
The exceptions taken to the submission of the questions to the jury, cannot be sustained. They presented the very questions in issue between the parties, and cannot be said, therefore, to be immaterial.
The agreement- that the questions should be submitted to the jury, is wholly inconsistent with a right in either party to object to the submission. To permit it would make it necessary to order a new trial, because of the improper submission.
The judgment must be affirmed.