7 Cow. 662 | N.Y. Sup. Ct. | 1827
There is no sufficient evidence to impeach the transaction between the Murrays and Bronson, as being in fraudem legis, or done with intent to defeat the operation of the defendant’s discharge. But if it be conceded that the transfer to Bronson was collusive, and that the Murrays continued to be the real holders till after the defendant’s discharge, it will not defeat the plaintiff’s right of action, provided that, subsequent to the discharge, he, as first indorser, was liable to the Murrays; and actually made the payment in question.
*The evidence sought to be derived from the bill in equity, I consider as irrelevant; for whatever may have been the equity between the plaintiff and the Murrays, it is a sufficient answer here, that no right of action could accrue to the plaintiff by reason of a contract which was not carried into effect. The Murrays refused to recognize the alleged agreement. It remained, therefore, unexecuted; and for this cause the plaintiff applied to a court of equity for relief.
The mortgage was a security merely, not a payment; and, therefore, did not place the plaintiff in a situation to demand anything of. Wilson, the defendant. He had not, then, become a creditor of the defendant by taking up the
According to this view, the plaintiff, having no cause of action against the defendant, at either of the times when he was discharged under the insolvent acts, is not affected by them.
The plaintiff’s right of action then, if any, arose upon his execution of his deed to the Murrays, on the 3d of February, 1821. The consideration of that deed was expressed at 1200 dollars; and it was received in payment of so much of the notes; that sum being the value of the lots as estimated by the Murrays. On the same day, they executed to the plaintiff a writing, by which, for the consideration of this 1200 dollars, they released him from all further liability as indorser. The remainder due on the notes constituted a valid claim in favor of the Murrays, against Wilson, the maker. No money was paid, as the consideration of the equity of redemption.
Hall’s purchase and release of the notes to the maker, is wholly unimportant in respect to these parties. The Murrays, ""having received 1200 dollars of the indorser, discharged his liability only; and ‘consequently, by a-transfer of the notes to Hall, he acquired the right of calling on the maker for the balance remaining due. The plaintiff’s right rests on the claim of having paid the 1200 dollars previously.
There is some question whether the equity of redemption taken subject to the previous mortgage, was equal in value to the 1200 dollars. The jury found $804 45 only ; and, from the evidence, I think they were warranted in finding that amount.
The view which I have so far taken of the case, obviates the objections for variance between the special counts and
My opinion is that the motion for a new trial be denied.
Motion denied.
Sutherland, J., not having heard the argument, gave no opinion.
See N. Y. Dig., vol. 3, tit. Payment Waterman’s Am. Ch. Dig., tit. Payment.