I concur in the result.
The assignor never delivered the bond and mortgage to the plaintiff. The plaintiff is, therefore, chargeable with notice of any defect in her title thereto. (Kellogg v. Smith, 26 N. Y. 18.)
Besides, the plaintiff had actual notice that the defendant claimed some equitable interest therein. The plaintiff thus stands in the shoes of his assignor; and as he knew that the assignor’s title was challenged by defendant he has no moral or equitable right to insist that the evidence which would be competent against her is not also competent against him.
Thus the .doctrine stated by Greenleaf and quoted in Paige v. Cagwin (7 Hill, 375), though not applicable to the case there, is applicable here, namely: An assignee is in certain cases bound by the previous admissions of the assignor “ where there is an identity of interest between the assignor and assignee. * * * Such identity is deemed to exist not only where the latter is expressly the mere agent and representative of the former, but also where the assignee has acquired a title, with actual notice of the true state of that of the assignor, as qualified by the admissions in question, or where he has purchased a demand already stale or otherwise infected with circumstances of suspicion.” (1 Greenl. Ev. 227, § 190.)
We can see in the case of a promissory note that the mere fact that it was transferred after maturity is not enough to taint it with its former holder’s disparaging declarations respecting it, when these are unknown to the transferee, provided he was a Iona fide purchaser for value; but if he had notice of them,, or of a claim of the maker adverse to the title he was purchasing, then we can also see that his volunteer purchase with such notice should not put him in *23any better position than was his assignor, and should not prejudice the maker in respect of the evidence which supports his claim or equities.
. As I understand the opinion in Paige v. Cagwin, it does not question the rule above quoted, but properly holds that it does not authorize the admission of the declarations of a former holder of a promissory note negotiated after maturity, with no further notice of its invalidity.
Here the plaintiff in addition to constructive notice had actual notice, and he purchased no more than the identical interest of Mrs. Beidleman, with notice that the defendant would probably rely upon her declarations fy) prove the extent to which she had impaired her interest.
I think it was error to exclude the evidence.
In Truax v. Slater (86 N. Y. 632) it was held that the mere declarations of the assignor of a chose in action, forming no part of the res gestes, are' not competent to prejudice the title of the assignee, whether the assignee be one for-value, or merely a trustee for creditors, whether such declarations be antecedent or subsequent to the assignment. The issue there was whether, before the general assignment to the plaintiff, the assignor had made a verbal assignment of that part of the assignor’s property which the defendant claimed. It was thus a question whether the defendant had" prior legal title. The court held that there was no sufficient evidence of it; that a valid agreement of sale based upon a sufficient consideration must be shown, and this the defendant had failed to do. The plaintiff had the paper title, and the fact that before giving it his assignor had said to a stranger that he had assigned some of his property to the defendant, or would do so, was not of itself any act of sale, or part of it, and, therefore, was not admissible. If any' equity of the defendant in support of the alleged sale to him known to the plaintiff, or as to which he should be held to have volunteered to take the risks, had been shown, a question like that in Von Sachs v. Kretz (72 N. Y. 548), and like the case before us, would have been presented.
Judgment reversed, and a new trial granted, costs to abide the event.