The bill is to foreclose two mortgages upon lot No. 6, in Camillas, and executed by Abraham Herring, the one to the plaintiff Impton, and the other to the plaintiff Jones. The title of Herring is spread out upon the bill, and deduced down from the original patentee. The chain of title is regular and perfect, but there was a *267delay of nearly ten years in putting upon record the deed from James Stewart to Herring, of the 1st of July, 1805. In the mean time, the defendants fraudulently procured a release and quit-claim from Stewart, for a nominal consideration, and placed it upon record before the prior and genuine deed from Stewart was recorded. The bill charges this fraud upon the defendants, and in addition to the usual prayer for a sale of the mortgaged premises, the bill seeks to have the quit-claim deed cancelled, and the pretence of title, on the part of the defendants, released.
The cause was brought to a hearing at the last Jwrae term, upon the pleadings and proofs, and the claim, on the part of the plaintiffs, appeared to be so just, and the fraud, and want of title, on the part of the defendants, so manifest, that it was almost, as of course, decreed, that the mortgaged premises be sold, in the usual way, to satisfy the mortgage debts, and that the defendants execute to the mortgagor a release of their pretence of title, with covenants against their own acts. Two parts of the mortgaged premises of fifty acres each, were excepted out of the decree of sale, having been sold and conveyed by the defendants previous to the filing of the bill, but the defendants were directed to account for the proceeds of the sale of those two parcels.
Upon this decree, a rehearing has been asked for and obtained, and the propriety of the decree has been discussed and considered. The defendants, by this re-examination of the merits, have made it incumbent upon me to discuss the transaction with an explicitness and freedom, which I wished to avoid.
That the quit-claim deed from Stewart to the defendant, Cornell, for the joint use and benefit of all the defendants, ■was fraudulently procured, cannot admit of any doubt. The defendants assume to be equally interested in the lot, and every act in relation to the title seems to have been considered as an act equally affecting all of them. They set up no other title than a deed from one Parker Burnham* *268of the 15th of November, 1309. We are to presume him to have been a mere occupant, for no title in him is pretended ; and when the defendants procured that deed, they must have known, or were bound to know, he had no title, for all titles to the military lands had, by a statute long previously existing, been required to be put upon record. The defendant, Wood, resided in the county of Cayuga, and was, no doubt, well skilled in the law relative to the military titles. There was evidence^ sufficient upon record to show, that the title was not in Burnham. The defendant Wood says, that he had discovered, “ at some period previous to the fall of 1812,” that Stewart had a deed upon record from Herring. How long before that period, he had made the discovery, does not appear. It is probable, he had made it before he took a deed from Burnham, as the deed from Herrins: to Stewart was recorded in 1797. .After making that discovery, he and the defendant Cornell, consulted with each other as to the expediency of buying Stewart’s title, and he had “ doubts as to the validity of the title of the said Jamos Stewart, to the said lot.” These doubts could not have arisen from any belief in the title of Burnham, (for that title appears not to have had any source or foundation,) but from the plain and unerring language of the public records, which he was in the habit of searching. There was a mortgage duly registered on the 1st of November, 1805, from Herring to Stewart, and that registry was evidence sufficient to satisfy any man of common sense, that the title which was in Stewart, in 1797, had passed out of him, and was in Herring in 1805. Had not this defendant inspected that registry ? He says, indeed, that “ he does not, at this time, recollect that he searched, or caused search to be made, in the office, relative to the registry of mortgages,” when he instructed the defendant How-land, in October, 1813, to go to Stewart, in New-York, and buy the lot of him, for a sum not exceeding fifty dollars. Can there be higher or more decisive proof, that he then *269knew that Stewart had parted with his title ? He admits, that he had long before discovered upon record the deed from Herring to Stewart; and he admits, that the lot was then worth from 4,800 dollars to 6,000 dollars, and j7et he sends an agent to buy up Stewart’s title, for a sum not exceeding fifty dollars. The proposition imports fraud on the very face of it. He intended to defraud the real owner, who then held the title derived from Stewart. The manner in which this agency was executed, appears from the answer of Howland, one of the associates in the purchase.
Howland says, that in pursuance of his instructions, he applied to Stewart, in the city of JVezu- York, and pi'ocured bis release and quit-claim, for ten dollars, though the sum inserted in the deed, as the consideration, was .100 dollars. He says, that when he called on Stewart to know if he had any claim or title to the lot, the latter said, that “ he had formerly purchased the lot, by which he had lost a considerable sum of money, and that he had met with other losses, in consequence of which, and his advanced age, he should give himself no further trouble about it.” Stewart then agreed to execute a release, for five dollars, buf on the next day, he refused to leave his work and go and execute the release, for less than ten dollars, which were given him.
The story, as to the reply of Stewart, is absurd. The defendant, Howland, meant to be understood, that Stewart then considered himself as owner of the lot, yet that he set no value upon it, though in 1797 he had given 1,495 pounds for that and three other military lots. The true account of the interview is given by Stewart and his wife, who both prove the atiswer of Howland to be false. They testify, that when the application was made to S. for the release, he told Howland that he had before conveyed the lot to Herring, and he referred the applicant to him. That Howland, (whom he did not then know) repeatedly called upon him, and urged the execution of a quit claim deed, and represent*270ed to him that it would injure no person. That he, supposing that H. had purchased of Herring, executed the deed. Howland says, he delivered the release so purchased, to the defendant Wood, and Wood admits he received it, and caused it to be recorded, on the 6th of December, 1813.
The other defendant, Cornell, says, that Wood had the principal agency and management of the lot, and he admits, that Howland was instructed by Wood to procure the release, and that he and Wood had previously conversed respecting the expediency of procuring it.
Here was, then, a quit-claim fraudulently procured from Stewart, with intent to defraud the legal owner under Stewart, and it was procured on the joint consultation and act of all the defendants. One of them, who was the agent under Wood in procuring it, is detected in positive falsehood and fraud ; and are we not bound to conclude, from the overwhelming force of the circumstances, that Cornell, who advised it, and Wood, who instructed the agent to procure it, for a nominal sum, and who received it immediately after-wards, and had it recorded, were equally guilty ? I am entirely satisfied, that all the defendants are chargeable with actual fraud.
Upon the ground of that fact, the decree in June was correct. If the defendants had any good title, they should have put it forward. They have chosen to set up a claim -under a third person, in whom no manner of title appears, either from their own answers, or from the proof, and they have chosen to bring forward a quit-claim deed taken purposely to defraud the plaintiff Herring. The title of the plaintiff Herring, is deduced from the fountain head, and appears to be sound and unbroken. It is, therefore, just and equitable, that the plaintiffs should be quieted in their title against all claim and pretension in the defendants. It is the duty of the Court to clear the title, under the allegations and proofs in the case, before the mortgaged premises *271are exposed to sale, and not leave purchasers under the decree to be embarrassed and exposed to further litigation. *
The decree of the 23d day of June last is, in every respect, confirmed, together with the additional costs of this rehearing.
Decree accordingly.