Wood v. O'Brien — 45 N.Y. St. Rep. 28

Majority

p. 28

Frank F. Wood, Pl’ff, v. Michael O’Brien and William F. Croft, Ex’r, Def’ts.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

1. Mortgage—Consideration.

The husband of the equitable owner of land and who was a speculator in stocks, applied to the attorney of his brokers for a loan. The attorney took a mortgage in the name of plaintiff, his stenographer, and gave an order on the brokers, with whom he had no account, and the brokers simply gave the husband credit on their books, no money passing. Held, that no consideration for the mortgage was shown.

2. Foreclosure—Parties.

The mortgage was given by defendant O’Brien, who held the record

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title, but liad executed a declaration of trust in favor of Mrs. C., which declaration had not been recorded. In an action to foreclose the mortgage, llekl, that the executor of Mrs. C. was properly made a party.

Appeal by defendant O’Brien from judgment of foreclosure and sale; also by defendant Croft as executor from said judgment ; also by the executor from order denying motion to vacate said judgment as to his testatrix; also by plaintiff from order-adding said executor 'as a party defendant.

Edward W. 8. Johnston, for def’ts; J. Henry Work and Á. L. Pincoffs, for pl’ff.

On the 15th of January, 1889, one Schneider conveyed certain lands to Michael O’Brien, one of the defendants. The deed was put upon record the same day it was delivered.. Simultaneously with the delivery of the deed to O’Brien he executed a paper evidencing the fact that the title was held for Mrs. Frances Croft. This declaration of trust was not recorded. On the 23rd of March, 1889, O’Brien gave the bond and mortgage-described in the complaint to the plaintiff for an expressed consideration of $7,000. The history of the alleged consideration is. as follows. William F. Croft was the husband of Frances A. Croft. He was buying and selling stocks in her name through Ward, O’Keefe & Company, brokers. James H. Work was an attorney at law, and the brother of Work, one of the partners, a legal adviser of the firm itself. Wm. F. Croft applied to James H. Work for the loan. He was accompanied by O’Keefe. Croft stated that the title was in the name of O’Brien. James H. Work gave Croft an order on the firm of brokers, for $7,000, and took the mortgage in the name of the plaintiff, who was his stenographer. Ueither the plaintiff or the attorney, his employer, had any bank account with the firm, nor does it appear that the attorney had any credit which authorized him to draw upon-the firm.

The evidence does not show any payment of the $7,000. The testimony of the attorney from the books that $7,000 was credited to Croft’s account was improperly received, and without further proof was inconclusive and. unsatisfactory. It established at best but an imaginary consideration, having no basis but a formal entry resting on no debt, and never having been made good by an actual payment. There is no proof that Wm. F. Croft ever received anything from the firm on the order. He testifies that he did not. The judgment should therefore be reversed, and a new trial granted, upon the facts as well as the exceptions. The appeal from the order denying motion to vacate judgment becomes unimportant, but to finally make the record right it should be reversed, without costs. The order making Mrs. Croft’s executor a party should stand. She owns the land, and the mortgage is an apparent lien on her land. Her declaration of trust is not on record, but the plaintiff has no right to prevent her from making such defense as she has now that her trust title is known.

The judgment should be reversed, and a new trial granted, costs to abide event; and the order making Croft, executor, a party should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.