The question raised by the bill of exceptions has been fully disposed of by the decision of this court in the case of Wearse v. Peirce, 24 Pick. 141. It was there held that in an action between the original parties, brought for the foreclosure of a mortgage given as security for a promissory note, the fact that the note was given without consideration was a good bar to the action, by showing nothing due. The question in such a case, whether anything is due upon the note, must be conducted m nearly the same way, and depend mainly upon the same evidence, as if the note were in suit. In such an action the defendant may show the same matters in defence against the mortgage, except only the statute of limitations, that he could against the note. Vinton v. King, 4 Allen, 562. Freeland v. Freeland, *443102 Mass. 475. Holbrook v. Bliss, 9 Allen, 69. It was also ruled in Wearse v. Peirce that this defence is not rebutted by showing that the note was given in fraud of the rights of creditors, for the reason that, if there had been such an intent, it was common to both parties, and the demandant is not in a position to avail himself of that fact. In such a state of facts, the maxim, potior est conditio defendentis, would be applicable. It is true that if the deed, instead of being a mortgage, had been a conveyance of an absolute estate, the law would not aid the grantor to recover it back. And for a like reason it will not aid the mortgagee, who is the actor, to enforce the payment of a fraudulent note to which he is a party.
As we see no reason for overruling Wearse v. Peirce, which seems to us to be entirely within the spirit and letter of the statute in relation to the conditional judgment in such an action, (Gen. Sts. c. 140, § 5,) we must order, according to the terms of the reservation, that Judgment be entered for the tenants.