The principal question in this case is one of fact. The evidence was very conflicting, whether the plaintiff or his agent took the assignment of the mortgage as a bona fide one, or whether they knew it was drawn to a third party, to be assigned to plaintiff upon an usurious rate of interest. The court below has found that the plaintiff took the same, believing it to be a bona fide existing mortgage.
We cannot reverse this finding. The mortgagor and her husband both swore to an affidavit, as to the validity of the mortgage, the husband at the time, and the wife within an hour afterward, and before the payment of but $500 of the purchase-price.
It is quite unlikely that these parties swore to a falsehood, known to be untrue by the plaintiff and his attorney, who were to receive it, and were to be protected by it. The estoppel is complete against Mrs. Burnham. It was part of the arrangement made by her agents, that she should sign such an affidavit, and that the fact that it was a good and valid subsisting mortgage was true. She ratified this afterward, and within an hour after the first payment of $500, by making the affidavit. She was estopped without the affidavit. That is but evidence of the assertion of the fact, which created the estoppel. It was proper to give a judgment for deficiency against the mortgagor; she received the money for which the mortgage was given, and that surely was for the benefit of her separate estate.
Judgment affirmed, with costs.
Present — Barnard, P. J., Tappen and Talcott, JJ.
Judgment affirmed, with costs.