Earl v. Clute

The súfreme court, at general term, affirmed the judgment, the following opinion being rendered:

By the Court.

Hogeboom, J.

The plaintiff offered to prove by William B. Harris, that one Fellows stated to Van Hyning (one of the mortgagees) before the assignment of the mortgage to Clute, that he had a mortgage upon the property in question, and asked Van Hyning if he did not know that the mortgage in question was given to settle and drop the criminal prosecution against James Emmett Earl; to which he replied he did. This evidence was objected to by defendant’s counsel as not competent in this action, and the objection was sustained by the court, and the evidence excluded. To which the plaintiff’s counsel duly excepted.

This exception is not well taken. In the first place, it was not material to this issue, whether Fellows had a mortgage upon the property in question; and as this evidence was properly excluded, the whole exception, being general, must fail. Again, as to the residue of the evidence, the offer was to show an admission by one of the mortgagees, that before he had made the assignment to Clute,—not before he took the mortgage,—he knew it was given to settle a criminal prosecution. Knowledge acquired at so late a period could not invalidate the mortgage. Besides, Van Hyning himself was a competent witness, and his admissions improper testimony. The true question was, whether the mortgage was in fact given for an illegal consideration; not whether he had said so. Paige v. Cagwin, 7 Hill, 361.

John K. Porter, for plaintiff, appellant;

That the mortgage was void, cited, 3 R. S. 5 ed. 9G9, § 18; Perkins v. Savage, 15 Wend. 412, 416; DeGroot v. Vanduser, 20 Id. 395; Peck v. Briggs, 3 Den. 107; Loomis v. Cline, 4 Barb. 453; Gray v. Hook, 4 N. Y. 449; Dewitt v. Brisbane, 16 Id. 508. The mortgagees had knowledge. Tracy v. Talmage, 14 N. Y. 162, 175. The intent is proved by circumstances. Van Neste v. Conover, 20 Barb. 547; People v. McCann, 15 How. Pr. 521. That the case should have been submitted. to the jury, the defense to the note being perfect. Story on Gontr. § 569, 575; Chitty on Contr. 570, 582; Bush v. Lathrop, 22 N. Y. 535. The admission of one of the conspirators was competent. Moers v. Morro, 29 Barb. 361; Cuyler v. McCartney,* 33 Id. 165.

T. J. Glute, for defendant, respondent;

Cited 5 How. Pr. 425; Tracy v. Talmage, 14 N. Y. 162.

The motion for a nonsuit was also properly disposed of. There was no sufficient evidence that there was any agreement to compound a felony; still less, that the mortgage was the result of such an agreement to compound a felony; still less, that the mortgagees had knowledge that the note which the mortgage was given to secure, was tainted by such an illegal purpose. All which were essential to make the mortgage invalid, even as against them.

The evidence was insufficient to warrant a verdict for the plaintiff, or to be submitted to the jury for that purpose.

The judgment of the circuit court should be affirmed.

The plaintiff appealed to this court.

The Court affirmed the judgment, for the reasons assigned in the foregoing opinion of Hogeboom, J., a majority of the judges adopting the same.

Judgment affirmed, with costs.