The referee has found, as matter of fact upon the evidence, that the deed of conveyance from the defendant Jeffrey S. Barnes to his son Aaron Barnes, and the bond and mortgage given back by the latter, were for the purpose of hindering, delaying and defrauding creditors. . He also finds that the plaintiff knew, and had notice of, such object and purpose. The plaintiff therefore, for all purposes of enforcing his bond and mortgage, or claiming any protection under them, stands in no better situation than a party to the original fraudulent transaction. In this aspect the case falls directly within the principle established in Nellis v. Clark, (20 Wend. 24 ; S. C. 4 Hill, 424.) The law will lend him no aid whatever in preserving his lien upon the premises, or in making the fraudulent securities available for any purpose.
It is claimed by the plaintiff’s counsel that the plaintiff, in respect to his mortgage, stands in'the position of a grantee of premises, and even if the mortgage is fraudulent, the defendants cannot dispute its validity. This would be so if the mortgage conveyed the title to the land, and it became vested in the plaintiff by the assignment. The law would then, as to the parties and privies, and all claiming- under them, or either of them, by grant or assignment, leave the title where the fraudulent act had placed it. But a mortgage upon real estate has no such effect. It is a mere lien upon the land and as security for the debt, and carries no title. (Gardner v. Heartt, 3 Denio, 232. Calkins v. Calkins, 3 Barb. 505.) The bond, which is the debt, is clearly an executory contract, and the mortgage being but a security for the debt, partakes of the same character. The case of Mosely v. Mosely, (15 N. Y. R. 334,) which is relied upon, is not in point. That was the case of a deed, and the long established principle which was applied properly there, has no application here.
The subsequent fraudulent acts of the defendant Barnes, in executing a satisfaction of the mortgage, and transferring the plaintiff’s note, do not help the plaintiff. Those acts, fraudulent and injurious as they certainly were, did nothing towards *163purging the bond and mortgage of their original taint. And it is precisely because of this taint, that the law withholds from them any aid, protection or regard.
[Monroe General Term, December 7, 1857.The judgment must therefore be affirmed.
Johnson, T. R. Strong and Welles, Justices.]