This action was brought by plaintiff to effect a redemption of certain real estate situated in the city of Buffalo formerly conveyed to her by one John P. Einsfeld, and to procure an accounting between plaintiff and said Einsfeld and the present defendants of moneys paid out or received on account of the plaintiff. The principal basis of the decision made by the learned trial justice denying plaintiff’s prayer for relief, was in effect that she had a settlement with said Einsfeld whereby and in pursuance whereof she had released all claims against him, including any rights in said real estate or to redeem the same. I think that error was committed in this determination which calls for reversal of the judgment.
The undisputed evidence and findings" of fact made upon the trial established, amongst others, the following facts:
In 1873 plaintiff procured a. sum of money from Einsfeld and executed to him a deed absolute in form of the premises in question. Simultaneously, however, an instrument of defeasance was executed back giving the right to redeem within a limited time. This transaction cOncededly amounted to a mortgage by plaintiff of her property. A short time subsequently Einsfeld entered into possession of the mortgaged property, thereafter receiving and enjoying the rents and profits and making certain payments for taxes, interest, etc. Plaintiff moved away from the city of Buffalo-to Cincinnati. While living in the latter place -she sent her husband to Buffalo to get an adjustment of matters with Einsfeld, and he did obtain from the latter $150 of which he made no account to his. wife. In 1885 or 1886, after the deáth of her husband, plaintiff found in an unknown drawer the papers constituting the original transaction between her and Einsfeld. and soon thereafter came to Buffalo to secure a settlement with Einsfeld and a reconveyance and possession of her real estate, and after various negotiations and an examination of Einsfeld’s accounts with plaintiff and the property, an adjustment was arrived at between the parties whereby Einsfeld paid to plaintiff *77the sum of $1,500, and she executed to him a general release which was in the ordinary form of all claims and demands whatsoever in law or in equity, but contained no specific reference whatever to said real estate or her right, title and equity of redemption therein. Although requested, plaintiff refused to execute any deed or conveyance of her property. Einsfeld continued in possession of the property until in 1891 when he died leaving a last will and testament by which the parties now named as defendants succeeded to his interest in said real estate. During the time which elapsed between said settlement and Einsfeld’s death he paid out various sums on account of said property by way of taxes and assessments for paving and sewer improvements, but spent no considerable sums in altering or repairing the buildings upon the property. The findings made by the learned trial justice that he and his successors made valuable and permanent improvements upon the premises must be held to largely relate to and cover the payment of taxes and assessments levied upon the premises ■ for the undisputed evidence shows that outside of said expenditures no substantial sums were spent.
At the time of the settlement aforesaid, upon plaintiff’s demand for a reconveyance of her property Einsfeld represented that he had conveyed away the same and also that he had failed or become financially irresponsible. ' Although these representations were not true plaintiff believed the same as expressly found by the trial court and. did not discover their falsity until after Einsfeld’s death. In 1893 this action was commenced.
It follows from the foregoing facts that plaintiff’s original conveyance to Einsfeld was a mortgage and that she is entitled to have an accounting with, and redemption of her property from the defendants as successors of Einsfeld, unless the same has in some manner been cut off or lost. It is urged in behalf of respondents that this result was accomplished by the settlement and release executed in 1886 and already referred to, but I am not able to accept or agree with that view.
Although the mortgage which plaintiff executed and which was put upon record was in form an absolute deed, she still retained title in fee to the premises covered thereby subject only to the conveyance as a mortgage and upon payment of her indebtedness would *78have been entitled to compel the execution of a reconveyance or of such other instrument as would perfect her record title. A mere release general in form such as plaintiff executed to Einsfeld was not sufficient to convey to him her title to said premises and to cut off her equity of redemption therein. She could only be divested of it (except by way of • estoppel) by some instrument which would be valid under the Statute of Frauds and in compliance with the statute prescribing the mode and manner of conveying lands. Her right of redemption was not in any sense a “ claim or demand ” Which would be cut off by the general release. (Odell v. Montross, 68 N. Y. 499.)
Therefore, if the transaction between the parties has operated to cut off plaintiff’s right in said .premises it must be upon some other theory than that just discussed, of a conveyance of transfer.
Upon the trial an amendment of defendant’s answer was asked and permitted allowing them to pray for such a reformation of the release executed as would turn it into a conveyance by plaintiff of her interest in said premises, it being claimed that it was the intention of the parties that she should execute such a conveyance. It is apparent from the findings made by the trial justice and it is conceded in the brief of the learned counsel for the respondents that no such reformation of the release was adjudged and plaintiff’s complaint, therefore, was not dismissed upon that ground.
It is, however, urged within the suggestions made in the case of Odell v. Montross, already quoted, that after the settlement and execution of the release in question Einsfeld and these defendants as his successors expended such sums in the improvement of. the premises as to have created an estoppel against plaintiff’s enforcement of her claim to the lands; also that owing to the death of Einsfeld it will now be difficult for defendants to make an accounting of his receipts and disbursements on account of plaintiff and said premises ; also that there has been laches in the commencement of this action.
The last two suggestions may be disposed of first. I think there was no unpardonable laches in the commencement of the action. As already stated, plaintiff did not discover the falsity of Einsfeld’s representations that he had sold and conveyed away the property until his death sometime in 1891, and this action was *79commenced in 1893. I am not aware of any authority which under the circumstances of this case would defeat plaintiff’s right to recover because, owing to the death of an adverse party in interest, it will be more difficult to make proofs in opposition to her claim. Neither am I able to discover that there will be any more difficulty for defendants than for plaintiff in establishing the account. Interest, taxes and insurance are undoubtedly the main items of payment, and these will so be a matter of record in the accounts of third parties that they may be easily proved. The payment of any small sum for repairs made and paid for by Einsfeld may apparently be established with ease by the testimony of witnesses, sworn upon the trial of this case, who had knowledge in regard thereto.
I pass, therefore, to the question of estoppel chiefly urged, that Einsfeld and the defendants had expended large sums upon the property by way of improvements. In the first place, in opposition to defendants’ invocation of the defense of estoppel against plaintiff upon principles of equity, it may be recalled that plaintiff was led into making the settlement and executing the release relied upon by the false representations of defendants’ predecessor in interest that he had parted with her real estate, and, therefore, could not reconvey it. It would be a somewhat strange and anomalous application of the principles of equity to allow defendants to build up the defense of estoppel against plaintiff upon acts which it is fair to state she was induced to perform by the fraud and misrepresentations of the predecessor through whom defendants claim.
Passing by this consideration, however, I am unable to perceive facts in this case which would constitute the defense of estoppel within the rule suggested in the Odell case. Einsfeld did not go into possession of the property upon the faith or strength of the settlement made with plaintiff. He was already there. He simply continued in possession, and continued to do precisely as he had been doing, and as he would have done if no settlement had been attempted. It has already been pointed out that the evidence shows conclusively that he expended no considerable sums for repairs or alterations of the property ; that his main expenditures were in the payment of taxes, interest and insurance, such as any mortgagee in possession would be apt to pay. As against these payments he and the defendants have had the possession of the property and the ben*80efit of the rental Value thereof. If upon a proper accounting it shall be found that the disbursements, including the amount paid plaintiff in 1886, exceed the amounts received, defendants can be amply and entirely protected by the striking and payment of such balance as the ordinary and necessary condition of plaintiff’s redemption of her property. It seems to me that there is nothing in respondents’ situation with reference to the property now or during-the occupancy of it by them and their predecessor which cannot be perfectly considered and taken care of upon an accounting such as usually accompanies a redemption of real estate from a mortgagee in possession; that there is nothing which prevents them from being restored to the position which was occupied by Einsfeld at and before the date of the settlement made between him and plaintiff, and that, therefore, there is not found in any alleged defense of equitable estoppel a reason for denying to plaintiff the relief which she seeks.
In accordance with these views I think the judgment appealed from should be reversed and a new trial granted, with costs .to appellant.
Judgment affirmed, with costs.