Frank L. Stowell, Appellant, v. George F. Hazlett et al., Respondents

Frank L. Stowell, Appellant, v. George F. Hazlett et al., Respondents. (Argued September 29, 1873; decided January term, 1874.) This was an action by plaintiff, as judgment creditor of defendant Hazlett, to remove the incumbrance of a mortgage upon Hazlett’s land, executed by him to defendant McIntosh, and recorded before the entry of plaintiff’s judgment, but subsequent to the creation of the debts on which it was founded. Plaintiff alleged that the mortgage was without consideration and fraudulent as to the creditors of Hazlett. The referee found that the mortgage was executed in pursuance of an agreement by which McIntosh was to convey his interest in certain leases of oil lands in Pennsylvania and to secure the purchase-price of such interest, but that the writing executed by McIntosh was insufficient to convey such interest and the agreement to convey was void under the statute of frauds, and that therefore the mortgage was without consideration and plaintiff was entitled to the relief asked. The General Term reversed the judgment and gave judgment for defendant. Held, that the judgment entered upon the report of the referee was properly reversed, but that a new trial should have been granted, as it could not properly be said that there was no possible state of facts upon which the plaintiff’s action could be sustained. D. H. Bolles for the appellant. Amasa J. Parker for the respondents. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for modification of the judgment of General Term so as to grant a new trial. All concur. Judgment accordingly.