Majority
p. 143Stephens vs. Sinclair.
Headnote
Where one took a deed of another’s farm, to defraud the grantor’s creditors, and afterwards, in pursuance of the same fraudulent arrangement, procured an assignment of an outstanding valid mortgage on the same farm, with the grantor’s money ; held, in ejectment by one deriving title under a judgment and execution against the grantor, that neither the deed nor assignment were available as a defence.By an assignment procured under such circumstances, the grantor is constituted the real assignee, and the whole enures to the benefit of his creditors, who may seize and sell the land discharged of the mortgage.
Ejectment, for a farm in Coeymans, tried at the Albany circuit in June, 1839, before Cushman, C. Judge.
At the trial, the plaintiff deduced a title to himself by sheriff’s sale, under a judgment of the 11th of May, 1835, in favor of the plaintiff and another, against. James Armstrong and Lawrence Armstrong. The judgment was obtained in assumpsit,' and amounted to $302,91. The defendant admitted that James Armstrong purchased the farm by deed, bearing date June 15th, 1827.
, On the part of the defendant, it was shown, that James Armstrong, on the day he acquired his deed, mortgaged
p. 144
the farm, in fee, to Epenetus Reid, to secure the payment of $1000 on the 15th of March, 1831; that this mortgage .was assigned by Reid to Sinclair, the defendant, on the 8th of May, 1835, for the consideration of $433,50. Sinclair defended in virtue of this assignment.
' In reply, the plaintiff offered to prove, that on the 8th of October, 1834, Janies Armstrong and the defendant agreed, that the defendant should take a conveyance of the premises in question to cover them against the plaintiff’s expected judgment—his suit being then pending; that, on the same day, Armstrong conveyed the farm to the defendant, who declared that he took subject to the said mortgage; that the defendant obtained the said assignment in pursuance of said fraudulent agreement; that Armstrong furnished him with the money to pay the consideration for said assignment, which he paid to Reid; that both the deed and assignment were taken to defraud the plaintiff in respect to his debt and judgment.
The offered testimony being objected to, and rejected by the judge, the plaintiff’s counsel excepted. . The judge nonsuited ’ the plaintiff; and he now moves to set aside the nonsuit, and for a new trial, on a bill of exceptions.
R. W. Peckham, for plaintiff.
M. T. Reynolds, for defendant.
Most clearly, the learned judge erred in. rejecting the plaintiff’s testimony. It is said, the defendant held a valid mortgage; and though he took a fraudulent deed, that' would .not vitiate the mortgage. The argument assumes what does not exist in respect to this plaintiff. If the proposed facts were true, the defendant does not hold the mortgage; he never had an assignment of it. The writing purporting to be an assignment is mere waste paper, void both by the common law, and the statute of the 13th Elizabeth, re-enacted here. Armstrong was the real assignee. The assignment was in consid
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eration of his money, and the defendant stood a mere fraud-' ulent go-between, a character which 'the law strikes down to a blank. In short, the whole being intended to defraud a creditor, is void. It displaced no right of Armstrong, and the entire transaction enures to the creditor’s benefit. If the offered evidence be true, he is entitled, on principles of law and honesty, to recover and hold the land discharged of the mortgage.
New trial granted,