Morgan v. Chamberlain

By the Court, Johnson, P. J.

The plaintiff’s mortgage is subsequent to the defendant’s, and from the mortgagee, and assignor of the defendant’s mortgage, who is also the grantee of the defendant’s mortgagor. The fraudulent conveyance of the premises originally, for which the defendant’s mortgage was given, wad tirade by him. The plaintiff’s mortgage was *166made after the premises were reeonveyed to such original owner by a voluntary conveyance, without any new consideration. The plaintiff, as respects the defendant’s mortgage, is not a bona fide mortgagee. He cannot claim as creditor of Jeffrey S. Barnes, but as subsequent mortgagee, in a mortgage taken upon a voluntary bargain or agreement, between himself and his mortgagor. When he took his mortgage he had full notice of the defendant’s mortgage. It was on record, and the referee has expressly found, as a fact in the case, that when the plaintiff took his mortgage, Jeffrey S. Barnes, his mortgagor, had executed a discharge of the defendant’s mortgage, and then gave to the plaintiff the note, which the defendant had given on the purchase of his mortgage, with the agreement that the plaintiff should keep it until it could be ascertained whether the defendant would ratify the satisfaction and discharge of his mortgage, which had been executed without his assent. It thus appears that when the plaintiff took his mortgage he was perfectly aware of the existence of the defendant’s mortgage, of its assignment to the defendant, and of the satisfaction without the authority or sanction of the defendant as assignee. Upon this state of facts it is clear that the plaintiff is in no better situation to attack the defendant’s mortgage than Jeffrey S. Barnes himself. As a general creditor of Barnes, he might have proceeded to judgment and execution, and thus put himself in a position to attack the defendant’s mortgage. But as a mere voluntary purchaser or mortgagee, he does not occupy that position. He stands in this respect in the shoes of his mortgagor, and must receive the same measure of justice which would have been meted out to such mortgagor had he undertaken by action to legalize the fraudulent discharge, and to destroy or impair the apparent lien of the defendant’s mortgage. Upon the same principles, therefore, and' for the same reasons, which prevailed in the other case, these parties should be left to stand in the position in which they have seen fit to place themselves by their own voluntary acts. The law will not lend its aid fóT *167any purpose of relief. The case of Moseley v. Moseley (15 N. Y. R. 334) is conclusive on this question, in a case like this. The judgment must therefore he reversed, and a new trial ordered, with costs to abide the event.

[Monroe General Term, December 7, 1857.

Johnson, T. E. Strong and Weiles, Justices.]