39 N.Y.S. 973 | N.Y. App. Div. | 1896
This is an action for the foreclosure of a second mortgage upon the premises No. 62 South Fifth avenue in this city. The main defense to the action is that the mortgage was given as part of a scheme to evade the provisions of the will of William Campbell, deceased. Under this will, Campbell’s executors were given a discretionary power of sale. But- they were given no power to mortgage. The plaintiff had a claim against this estate upon a judgment entered after Campbell’s death upon a verdict directed prior to his death. Campbell’s executors desired to raise money upon the real estate which they held in trust, and the plaintiff desired security for his judgment debt. It was thereupon arranged that the executors should execute a deed of the property in question to the defendant Amy C. Phyfe, who was a young girl twenty-two years of age, the daughter of John I. Phyfe, a son-in-law of the deceased. Miss Phyfe in return was to execute two mortgages, one for $14,000 to a
"Without considering the other questions, both of. fact and law, presented by the parties, we think it plain that the plaintiff’s mortgage is, for the reasons given, invalid and that’the defendants' ar.enot estopped from questioning it. The plaintiff gave nothing for it, released nothing upon the faith of it, and has apparently lost nothing by its acceptance. He simply took it, as he says himself ■, as collateral 'security for his judgment debt. We do not mean, to intimate-, however, that but for these facts the defendants would have been estopped. We'simply say that these facts — conclusive in themselves—-render it unnecessary .to proceed further with the discussion upon that head.
• It follows that the judgment appealed from should be reversed, and-—as upon the case presented by the plaintiff her mortgage cannot be sustained — the complaint dismissed, with costs-.to the executors and also- to the defendant Amy C. Phyfe of this appeal and of the action.
Rumsey,' Williams and Ingraham, JJ., concurred.
Judgment reversed, and the complaint dismissed, with costs to the executors: and' also to the- defendant Amy 0. Phyfe of this appeal and of' the action.