9 Wend. 345 | N.Y. Sup. Ct. | 1832
The mortgage to Starks, to indemnify him as surety for the payment of the purchase money, was legal and valid, and the plaintiff in error obtained a perfect title to the oxen on the re-sale in September, 1829. The continuance of the possession and the use of the oxen by Clark and Nichols were not, under the circumstances of the case, fraudulent in law, and there is no pretence of fraud in fact. Without discussing a point which has been the subject of frequent examination in this court, I will merely refer to the cases in 3 Cowen, 486, 4 id. 461, 2 Wendell, 446 & 596, the leading principles of which fully maintain the position assumed. The judgment ought, therefore, to be reversed, and a venire de novo should issue.
See Hall v. Tuttle, 8 Wendell, 381, recognizing the principle that if a party lends money to another to purchase a chattel, and takes a mortgage for his security, the transaction is fair.
