Arba Briggs, Appellant, v. John Langford et al., Respondents

Arba Briggs, Appellant, v. John Langford et al., Respondents. (Argued December 6 1887, decided December 20, 1887) The defense oí want of consideration is available against an assignee of a mortgage although he is a bona fide purchaser, he stands m respect to the security in the place of the assignor This action was brought to restrain the foreclosure by advertisement of a mortgage executed by one Day and wife to defendant Heath, and by him assigned to defendant Lang-ford. Day conveyed the land to plaintiff by warranty deed, representing that it was free from all incumbrances. [MAJORITY — Andrews, J.,] The following is the mem. of opinion: “We think that the trial court erred in overruling the offer of the plaintiff to prove that the mortgage was given for the purpose of defrauding the creditors of the mortgagor, and upon no other consideration. The plaintiff paid the full value of the land upon the assurance of Day that it was free from incumbrances. Day is dead and his estate is insolvent, and there is no available remedy on the covenants in the deed. If the mortgage was without consideration it could not be enforced against Day although it was given to cover up his property and defraud his creditors. (Wearse v. Peirce, 24 Pick. 141.) The defense of want of consideration is equally available against Langford, the assignee of the mortgage, as against Heath, the mortgagee, for he stands in respect to the security in place of his assignor; and even if he is a bona fide purchaser, he is not exempt from the defense of want of consideration. (Jones on Mortgages, § 843, and cases cited; Bush v. Lathrop, 22 N. Y. 535.) WilUam H. Henderson for appellant. Worthington Froihingham for respondents. “ The plaintiff occupies a position quite as favorable at least as that of the mortgagor. He paid the full value of the land and upon the plainest principles of justice he is entitled to assail the validity of any pretended liens thereon. Upon the facts found it is difficult to resist the suspicion that this is an attempt to enforce a void mortgage, and, under cover of pretended transfers and assignments, to consummate a fraud upon the plaintiff. It is a case where all possible light should be thrown on the transaction. “ The judgment should be reversed and a new trial granted.” Andrews, J., reads for reversal and new trial. All concur. Judgment reversed.