29 N.J. Eq. 412 | New York Court of Chancery | 1878
The complainant, Mrs. Adah A. Putnam, was, on or about the 21st of April, 1871, the owner of a bond and mortgage for $12,000 and interest, given to her by Jane M. Mackay and her husband, on land in Jersey City. At
The complainant seeks by this suit to obtain a decree setting aside the assignment from her to Barrett as fraudulent, on the ground that the latter fraudulently altered it after it was executed, by substituting his name for that of Eamsey,
The assignment in question cannot be found. The evidence falls very far short of proving that the alleged alteration in it was ever made. The only witness on the subject is Mr. Putnam, who admits that he has not the slightest recollection of having executed any assignment, or that his wife did. He says that he has endeavored to refresh his recollection on the subject, but has no recollection whatever upon it.
• The whole business of negotiating and assigning the bond and mortgage was, he says, entrusted to Barrett, and, he- adds, that the presumption is, that if he and his wife executed an assignment, it was such a one as Barrett prepared or caused to be prepared for them. He further says, that if he signed any paper, he left it with Barrett. It .appears, from his testimony, that when Barrett informed him of his failure to obtain the money from Ramsey, Barrett said that if he would leave matters to him he might be able to do something for Mrs. Putnam, 'which would compensate her for the disappointment.
The complainant relies on the fact that it appears by the record of the assignment that, beneath the signature of the subscribing witness (Mr. Nettleton, the commissioner before whom the acknowledgment was taken), there is the following note:
“The words C. Barrett-, of the city of New York, written on an erasure before execution.”
And Mr. Nettleton testifies that he never so noted writing over erasure in an instrument witnessed by him, but that his uniform, unvarying practice is to note the alteration or writing - over erasure above his signature. He does not, however, remember witnessing or taking the acknowledgment qf the assignment, and he admits that, he sometimes has forgotten to sign his name as a witness to instruments
The burden of proof is upon Mrs. Putnam to prove that it was so made. Cumberland Bank v. Hall, 1 Hal. 215 ; N. River Mead. Co. v. Shrewsbury Church, 2 Zab. 424.
Failing in proving that any alteration was made in the instrument after its execution, the complainant’s case, on this head, stands thus: Having executed an assignment -of!, the bond and mortgage to her agent, for her own benefit, j the agent, in violation of the confidence reposed in him, fraudulently disposed of the bond and mortgage to his own use. As against the title of a bona fide assignee for valuable | consideration, without notice, she can have no relief, in f equity, under «such circumstances. Westervelt v. Scott, 3 Stock. 80; Van Hook v. Somerville Manufacturing Co., 1 Hal. Ch. 633. Her counsel insists that Clark, though a bona fide assignee for valuable consideration, without notice, is affected by the equities existing between her and Barrett. But it is established in this state, that while the (i purchaser for value of a chose in action is bound by the j) equities existing ^against it in the hands of the original| obligor, he is not bound by the latent equities in favor of third parties of which he had no notice. Losey v. Simpson, 3 Stock. 246; Woodruff v. Depue, 1 McCart. 168 ; Danbury v. Robinson, Id. 213; Starr v. Hoskin, 11 C. E. Gr. 414. The decision of this case rests, however, on estoppel.
If the controversy were between Mrs. Putnam and Amasa A. Redfield, the title of the latter to the bond and mortgage would be subject to considerations arising from his answer and the testimony adverse to its validity, but these considerations cannot, avail her against the representatives of Clark.
It appears, by the answer of Amasa A. Redfield, that the
In consideration of receiving the bond and mortgage, Clark paid the purchase-money. Of course he would not otherwise have done it, for the amount due on the mortgage exceeded the price at which he had bought the property. The assignment of the bond and mortgage was, by his direction, made to his wife, in trust for him. Clark was a bona fide purchaser, for valuable consideration," of the bond and mortgage, and he had no notice of any infirmity in, or equity against, the title of Amasa A. Redfield thereto, nor was there anything to put him upon inquiry. Under such circumstances the complainants cannot prevail. Trenton Banking Co. v. Woodruff., 1 Gr. Ch. 117; Jones v. Powles, 3 Myl. & K. 581.
The bill will be dismissed, with costs.