| New York Court of Chancery | Sep 29, 1814
I have not been able to discover any principle arising out of the facts, in this case, that enable me to set aside the bond and mortgage given by the plaintiffs to the defendant, Bay. The ground taken in support of the bill, is the failure of consideration: 1. Because the title, derived from Platner, was founded bn a forged deed from MlDougall to Plainer: 2. If not, yet that there was a prior conveyance from M-Dougall to Weatherwax.
1. The allegation of forgery is not proved, and, probably, would never have been made, if Platner had not been convicted of some other forgery, in 1799, and which was several years after he had sold to the plaintiffs. But we are not authorized to declare the deed a forgery, on mere suspicion, nor because Platner was convicted of forgery, in another case, totally unconnected with this. The deed appears to have been proved before a master, by a subscribing witness, in 1797, or two years before the plaintiffs contracted with Bay. They purchased with knowledge of several circumstances, now put forward as grounds of suspicion; for those circumstances were known to Elijah Snow, in 1793, and by him told to the plaintiffs, before they took their deed of Platner, in December, 1794. When the bond and mortgage, originally given to Platner, were given up and can-celled, in 1799, and a new bond and mortgage (being the same now in question) executed to Bay, he appears to have been the assignee of the original bond and mortgage, without the knowledge of any fact to impeach them, and to have purchased them for a valuable consideration. There is no such knowledge brought home to him by any proof in the case. He alleges, in his answer, that he purchased the bond and mortgage, bona fide, and for a valuable consideration"; and his averment must be taken for truth, until it is ' duly disproved. The consideration is- supported by the deposition of William Bay, and the fact is not contradicted.
2. The failure of consideration, because M‘Dougall had no title when he conveyed to Platner, does not appear to be sufficiently ascertained. It is said to be very difficult to extract from the books, what the rule of equity is upon this point of failure of consideration, after the agreement is executed ; (1 Fonb. 363. ;) but, 1 apprehend, it may be safely said, that there is no case of relief on this ground, when possession has passed and continued, without any eviction at law, under a paramount title. Platner conveyed to the plaintiffs, with a covenant of warranty, and he is bound to defend their title at law; and non constat, that he is not able and willing to do it. There was a case under Lord NoU tingham, (2 Ch. Cas. 19. Anon.) in which the purchaser was relieved from the payment of the purchase money; but he had already lost the land, by-eviction, under a better title. If the title fails, in this case, the plaintiffs can resort to the covenants in their deeds for their indemnity. I consider an eviction at law an indispensable part of the plaintiffs’ claim to relief here, on the mere ground of failure of consideration. The proof is, that they have been in possession of the land ever since the purchase from Platner, (and which was near twenty years ago,) under" that title, and no other. It would appear, indeed, from exhibits in the cause,, that MDougall, under whom Platner claimed, had previously sold to one Weatherwax, whose estate was afterwards forfeited to the people of this state. That may be the better title, but it cannot be tried here upon this bill. The people are no party to this suit, and the presumption is ripening fast against that title, from the lapse of time since it accrued.
There is another, and a very strong ingredient, in this case, that forbids relief. I allude to the fact, that several years after the purchase from Plainer, and enjoyment of the land, the plaintiffs took up the original bond and mortgage, and gave new ones to Bay, the assignee, in consideration, of forbearance. He stands in the light of an assignee for a valuable consideration, without notice of any fraud, or want of consideration, in the original creation of the debt. He has, therefore, strong claims against the interference of the court against him. Such purchasers are especially protected in their subsequent contracts. Thus, where A. gave a usurious note to B., who sold it to C., for a valuable consideration, without notice of the usury, and A. took up the note, and gave a bond to C. for the amount, it was held good. The substituted security was not liable to the charge of usury, which vitiated the original security. (Cuthbert v. Haley, 8 Term Rep. 390.) On the same principle, a purchaser, without notice from a fraudulent purchaser, is not affected by the fraud. (Jackson v. Henry, 10 Johns. Rep. 185.) The maxim, in these cases, is, in jure non remota causa sed próxima spectatur.
I have considered this case, all along, as if Bay was still owner of the bond and mortgage, and have not deemed it material to examine, as to any notice with which Underwood, the present holder of the securities, might be charged. It is a well-settled rule of this court, that a man who is a purchaser, with notice himself, from a person who bought without notice, may protect himself under the first purchaser.
I am, accordingly, of opinion, that the bill, as to all the defendants, must be dismissed, with costs.
Bill dismissed.