1 Hopk. Ch. 48 | New York Court of Chancery | 1823
The second of these suits, is a cross bill; and both are in substance, one cause.
The proceedings in the supreme court, by which these lands were sold, appear to me to have been a gross fraud upon the children of Henry Cunningham." Almost every step taken in those proceedings, gives evidence of fraud; and the various proceedings which terminated in the sale of theiands, when viewed collectively, exhibit a case of fraud, plain and palpable. To state all the circumstances, which taken separately, or considered collectively, impress those proceedings with the character of fraud, would be to recite most of the facts before the court; and in a case so clear, such a recital is unnecessary. I consider all the proceedings in the supreme court and the sale conveying the lands to William Erwin, as one tissue of fraud; of which he, William Erwin, was the author, and in which, he was the principal actor. Without any necessity for converting the inheritance of Catharine Cunningham into money, and without any just reason in reference to her interests, William Erwin procured her title to her lands, to be vested in himself; and this was done, by the most odious of all frauds, a fraud practised upon a court of justice, under the forms of law. This was fraud in fact, the actual fraud of Wil
The title of William Erwin being considered invalid, "as having been obtained by his own actual fraud ; it is unnecessary to decide the questions which have been raised, concerning the legality of the proceedings in the supreme court.
After the conveyance to William Erwin, he mortgaged the lot in the town of Cincinnatus, to Robert Wood and Charles Wardell; and they have assigned the mortgage to the complainants in the first of these suits. William Erwin has also mortgaged a part of the same lot, to John I. Galatian, one of the complainants in the original suit. These two mortgages are the foundation of this suit, and the subject of litigation now before the court.
If these complainants are purchasers for a valuable consideration without notice of the antecedent defect in the title of William Erwin, they are entitled to the benefit of their mortgages ; or if Robert Wood and Charles Wardell were purchasers for a valuable consideration without notice, the complainants may protect the mortgage assigned to them, by that fact.
The want of notice, by which a purchaser may protect his estate against an antecedent defect in the title of the vendor, being allowed to prevail as an answer to such a defect; it always forms a matter of defence to be alleged by the purchaser. It is his good faith and his honest ignorance of any defect in the title, which protect him; and he must always sufficiently allege his want of notice. If this were not so, any cunning or colluding purchaser might obtain a title infected by fraud or subject to trusts; and all rights not apparent upon the legal title purchased, would be easily destroyed. The burden of this defence, rests upon the purchaser ; and as his own knowledge or his own ignorance is the question, he must, if he seeks to avail himself of this defence in equity, deny knowledge upon oath. He must not only deny any knowledge of the title of the adverse party; but he must also deny any knowledge of circum
The complainants in the suit to foreclose the mortgages, are defendants in the cross suit; and by the cross bill, their title is directly impeached as void, by reason of the fraud which is the source of this controversy. They were therefore, bound to answer all the charges of the cross bill; and if they were purchasers without notice, and were desirous to take shelter under that fact, they were bound to allege it precisely and positively, in compliance with the established rules which have been mentioned.
The complainants answering the cross bill say, that “ they “ deny,” that when they received their securities, “ they had ac- “ tual notice of the said proceedings,” meaning the proceedings in the supreme court, “ and of the claim of the said Catharine “ Cunningham except” as is herein stated. The same idea is more vaguely stated in other parts of the answer; but I select this statement, as the strongest denial of notice, which the answer affords. They here deny actual notice of the claim of Catharine Cunningham; but if they had any notice whatever, it is sufficient to repel their equity. This denial of actual notice, is also accompanied with the limitation, “ except as is “ herein stated.” In other parts of the answer they admit that when they received their securities they had heard and believed, that the lands had belonged in part, to Catharine Cunningham, as an heir of her father; that she was a minor ; and that the lands had been purchased by William Erwin, while he was her guardian in the suit for partition. They then knew, by their own admission, that they were purchasing a title, which had belonged to a minor, and had been purchased by the guardian of the minor during the continu
This view of the cause disposes of the question of notice to the complainants in the first suit, and also decides, that Galatian as one of them, is not entitled as a purchaser without notice, to hold the mortgage made to him by William Envin. The other mortgage was executed to Wardell and Wood, and ivas assigned by them to these complainants ; and in respect to this mortgage, I now inquire, whether want of notice to Wardell and Wood of the facts vitiating the title of William Erwin, is averred and supported, as a defence.
Wardell and Wood have been examined as witnesses ; and their testimony though vague, seems to show, that they had no notice of the defect of William Erwin’s title. As a question c>f fact upon the proofs before the court, it is very uncertain, whether Wardell and Wood took their mortgage, with no
Thus, neither the complainants nor Wardell and Wood, stand here, as purchasers without notice, according to the rules and principles which govern that defence ; and the rights of Catharine Cunningham must prevail.
The bill in the first suit, is the ordinary bill to obtain satisfaction from the land mortgaged ; and the two mortgages, are the subject of the suit. The cross bill seeks to set aside the proceedings in the supreme court, the sale of all the lands to William Erwin, and to revest in Catharine Cunningham all her rights; and the court has been asked to make a decree to that effect. This course would treat the cross bill as an original billfor relief, upon all the matters stated in it; and these matters are to a great extent, different from the subjects of the original suit, A cross bill is a defence : and being so consider