The discharge to the defendant Edward was made with his full knowledge that Elizabeth paid nothing for the assignment, and of the fact that the plaintiff claimed the ownership of the mortgage and had requested Elizabeth to assign it to her. He paid nothing for the discharge. The rights of the plaintiff, therefore, are to be determined as if Elizabeth now held the mortgage undischarged.
The consideration for the assignment executed by Comey was paid by the plaintiff out of her separate property, and the assignment taken in the name of Elizabeth at the plaintiff's request. The plaintiff did not intend to release her claim to the mortgage. Under this statement of facts there was a resulting trust in favor of the plaintiff. *Page 200
Some days after the hearing was closed, the defendants offered proof of the law of New York in regard to resulting trusts. Whether the hearing should be reopened, or a new trial granted, are questions for the trial judge. So far as the facts are shown, no equitable grounds appear for a further hearing.
Decree for the plaintiff.
CLARK, J., did not sit: the others concurred.