46 N.Y.S. 983 | N.Y. App. Div. | 1897
The defense of the appellant Catto and of the defendant Foltz to the bond and mortgage in suit was based upon an assumed fraud that had been practiced by the defendant .Briggs upon Foltz. The finding of the trial court, that no fraud had been perpetrated by Briggs and the plaintiff’s officers upon Foltz, is so far sustained by the evidence that we are not at liberty to overrule, the conclusions of the trial court upon the subject.
If we understand the contention of the appellant Catto it is that* oy reason of this assumed fraud, the mortgage in suit became vitiated and void, or at least so far tainted' with the fraud that its foreclosure will not be decreed by a court of equity. It is difficult to see how •the appellant can avail himself of this assumed fraudulent transaction as between the other defendants Briggs and Foltz, and the learned and able brief of the appellant’s counsel has failed to point out clearly how this can be done, but, be that as it may, it is sufficient to say that, eliminating the fraud from -the case, the appellant’s defense fails altogether unless it can stand upon the proposition that there was no consideration for the bond and mortgage as between the plaintiff and Briggs, and it is not in a position to enforce these securities because the claims or demands, to secure - which the bond and mortgage were assigned to the plaintiff as' collateral,. were not due at the time of the. commencement of the action. A careful review of the evidence does not lead to the conclusion that either of these defenses was' established. The Briggs were parties to the contract of transfer of the bond and mortgage to the plaintiff. The statement of facts above given shows that a . portion of the amount secured by the bond and mortgage was not only due at the time of the commencement of the action,'but there was a sufficient consideration both for the execution of the bond and mortgage as between the Briggs, and also of the assignment thereof to the plaintiff. .
We have considered the other points raised by the appellant’s counsel, but are unable to discover any good reason that should lead to the reversal of the judgment appealed from, and we are led to the conclusion that the judgment should be affirmed, with costs. .
All concurred, except Follett, J., not sitting.
Judgment affirmed, with costs. .