25 N.Y.S. 931 | N.Y. Sup. Ct. | 1893
The complaint alleges that in June, 1872, one Thomas H. Cocke and one John S. Hatcher were copartners in business at Memphis, Tenn., under the firm name of J. S. Hatcher & Co.; that in July the Life Association of America agreed to loan to said Cocke $10,000 on a note for that sum made by humand his
There is no doubt upon this state of facts that the action of Tobey and Kirk in disposing of this draft was a conversion of the same, and they became liable for the damages arising from such conversion. The result of this transaction is that they have stolen the money realized upon the draft in question, and appropriated it to their own use, without the slightest right or authority. Whatever may be said in regard to the forms which were used to attain the end, it is clear that the whole intention of this transaction was to place it upon such a footing that the association, on the 15th of October, 1872, could be compelled to pay to Thomas H. Cocke the sum which they had agreed to loan him upon his and his wife’s note, taking as security therefor a mortgage upon the real estate of plaintiff’s testatrix. Kow, by the illegal and fraudulent acts of Tobey and Kirk, the Life Association of America has been compelled to pay this money to other persons. They have not kept their contract with Cocke, and paid him the money which they agreed to pay him, and the object and inducement which caused the wife of Cocke to become his surety has been entirely defeated; and yet the respondents claim that there is no remedy for such a wrong. It seems only necessary to state the proposition in order that the answer may come that thieves have no title to stolen property. The plaintiff’s testatrix has been compelled to pay out of her estate the amount of this mortgage, without a dollar of consideration ever having been received therefor, except such as the defendants in this action have received in violation of their agreement, and converted to their own use. It seems to be apparent that her estate is entitled to be reimbursed, and that the parties who were guilty of the fraud are bound to respond to the party who is immediately injured, no matter how many intervening rights might have been called into play to enforce this result. By reason of the fraudulent action of the defendants, the consideration to the plaintiff’s testatrix for the mortgage which she gave to the life association entirely failed, and yet she has been compelled to pay the mortgage. We say “entirely failed,” because it appears upon the face of the complaint that the consideration for the execution of that mortgage was a loan to be made by the life Association to her husband, evidenced by the draft which the life association has been compelled to pay to an innocent holder; and, although the wife’s estate has been compelled to pay the mortgage, the husband has received nothing, and the defendants, without a