In 1861 the defendant Patrick O’Dongherty, being the owner of certain lands in Jefferson county described in the complaint, executed a mortgage upon the lands, accompanied by a bond, to his father, John O’Dongherty, purporting to secure the payment to said John of the sum of $4,500, with interest. The mortgage was duly recorded in 1861. In December, 1861, the said John O’Dougherty signed, sealed and acknowledged an instrument purporting to assign said bond and mortgage to the defendant Anna M. O’Dougherty, the wife of Patrick O’Dougherty.
John O’Dougherty died in April, 1862, leaving the defendant his sole heir at law, and in 1865 the said Patrick O’Dougherty was duly *429appointed administrator of the estate of his father, John O’Dougherty. In December, 1867, Patrick being indebted to the plaintiff, in consideration thereof and of a further advance, and of an agreement on the part of the plaintiff to give further time for payment, procured his wife, Anna, to assign §1,000 of the mortgage, that being the amount due the plaintiff, to be paid to the plaintiff with interest — §500 in one year and §500 in two years from the date of the assignment. In this assignment the bond was not mentioned, but the following language was used: “With all the same powers as vested in me by the assignment of the same to me.” The money due to the plaintiff was not paid, and he commenced a foreclosure by *430advertisement, whereupon Patrick set up a claim that the plaintiff got no interest for the reason that the bond was not assigned to him, and perhaps claimed that there were other objections to the mortgage. And then a new arrangement was made, on the 16th day of April, 1870, whereby it was agreed between the plaintiff and Patrick that a formal assignment of the bond and mortgage should be executed by Anna to the plaintiff, to secure the payment of the debt then due, with interest, in two years, and the additional sum of $155.63, being the amount oí a judgment then held by the plaintiff and another against Patrick, which judgment was to be assigned to Anna. The arrangement was carried out by the execution and delivery of the assignment by Anna, and the assignment of the judgment to her. Patrick negotiated this arrangement and delivered the assignment to the plaintiff, and received the assignment of the judgment to Anna. And it is the last assignment under which the plaintiff claims in this action, which is tb foreclose the mortgage for the collection of the debt due him. There are no other parties who interpose any claim. The defense which Patrick O’Dougherty sets up in his answer is, that the mortgage was made by him to John O’Dougherty, solely to indemnify the latter against liability for the indorsement of certain notes or obligations, and that he paid the said notes and obligations so that said John was never made liable thereon. And that there was nothing due on the mortgage, and it was not in force when assigned by John to Anna. It is manifest that Patrick cannot set up this defense. To permit it would be to allow him to perpetrate a gross fraud on the plaintiff. The counsel of Patrick furthermore claimed, on the argument, that Anna M. O’Dougherty never got any title to the bond and mortgage by reason that they were never delivered to her. It was not necessary that they should be actually delivered. They passed by the assignment, and the court has found that the latter was duly delivered under, a state of testimony which warranted the court in holding, as a question of fact, that it was delivered to' Patrick for and on behalf of Anna. Besides, Patrick is also estopped from setting up, as against the plaintiff, any defect in Anna’s title. He caused the assignment to be recorded, 'and negotiated the transfer of it to the plaintiff for a valuable consideration, and for his (Patrick’s) own benefit. And under the circumstances Patrick cannot allege any infirmity in the title of Anna.
*431It only remains, in addition to the opinion delivered at the special term, to notice two points which were apparently made for the first time on the argument of the appeal. It is claimed by the counsel for the appellant that Anna M. O’Dougherty, being part owner of the bond and mortgage, should have been made a co-plaintiff, or that it should hare appeared in the complaint that she had refused. Granting this to be so, the defect appeared on the face of the complaint, and the defendants have waived it by not demurring. The interests of Mrs. O’Dougherty are protected by the provision in the judgment, that any surplus over the plaintiff’s debt is to be paid over to the county treasurer. With the disposition of that surplus the plaintiff has nothing to do. As between Patrick and Anna, it may be quite possible that he may attack the validity of the mortgage or her title to it. The appellants’ counsel also objects that the bond could not be proved on the ground that it was not alleged in the complaint. The facts are that Patrick had always kept the bond in his possession, and the plaintiff was uncertain whether there was in fact a bond .or not. It was produced on the trial by Patrick, and the allegations of the complaint were sufficient to enable the plaintiff to avail himself of the bond, if it appeared that one was in existence.
The judgment is right, and must be affirmed with cost of the appeal.
Judgment affirmed.