2 Edw. Ch. 535 | New York Court of Chancery | 1835
The bill proceeds mainly upon the ground of Scott and Legget’s holding a lease, by way •of mortgage or security, for a debt due to them ; and that there is an equity of redemption or some interest remaining in Hay and wife or in one of them, which renders the property liable to be sold and the proceeds, after satisfying Scott and Legget’s debt, subject, inequity, to the complainants judgment.
The question then is : whether Scott and Legget stand as mortgagees or as the absolute and Iona fide owners of the leasehold premises.
The answer is positive in denying that the relation of mortgagor and mortgagee existed after the assignment or
In the present case, as between the parties to the sale and assignment of the lease, there is no ground for imputing unfairness to Scott and Legget or for holding that any equity of redemption remains. The circumstance of their being
If there be no right of redemption in Hay and his wife —and, according to the answer, there is none—then the complainants, as creditors, can have no such right.
•Whether the assignment was fraudulent as to creditors, is another question.
The complainants have not attempted, by this bill, directly to impeach it for fraud. It is not expressly charged, nor does the pleading pray that the agreement should be set aside on account of fraud. The equity o.f the bill is made to rest more particularly on the ground which has been considered ; and I feel great difficulty, from the state of the pleadings, in entering into the consideration of fraud with respect to third persons. There are circumstances disclosed by the answer which may serve as indicia of fraud: such as selling the property in payment of an antecedent debt of four hundred dollars and without any advance, while the premises were at the time worth seven hundred dollars—the purchasers knowing of embarrassment from other debts and particularly the complainant’s demand, which was then progressing towards a judgment—also, leaving Mrs. Hay, after the sale, in the enjoyment of a part of the premises free from rent. If these circumstances were distinctly charged as evidences of fraud, perhaps they might be explained away ; and in the absence of direct allegation, I am not warranted in assuming them to be conclusive perse of fraud: see, Cunningham v. Freeborn, 11 Wend. 240.
Besides, there is a further difficulty. William Legget,. who is interested as one of the owners of the lease, has not been made a party. He was absent for a time ; and is alleged to have been abroad when the bill was filed. Still,