3 Barb. Ch. 613 | New York Court of Chancery | 1846
The facts disclosed upon the examination of the complainant as a witness upon the creditor’s bill filed against the mortgagor render it highly probable that his mortgage was given for some fraudulent purpose, and that the
The great difficulty in establishing fraud in the giving of the mortgage, in this case, is that there is no evidence whatever that the mortgagor was indebted to the appellants at that time; or indeed that he owed any debts whatever, except a small one for which the mortgagee was himself liable, and for the payment of which debt the mortgagee was otherwise secured. From the affidavits, used upon the application of the appellants to be let in to defend, it appeared probable that their debt was contracted long before the giving of the mortgage; and that when the mortgage was given the mortgagor was insolvent, or in failing circumstances. But as no evidence was produced upon the hearing to show that the mortgagor had any creditors, at that time, who could have been defrauded by the giving of this mortgage, the vice chancellor was not authorized to decree that such mortgage was void as against the appellants; upon the ground that it was given to defraud the creditors of the mortgagor.
The decree appealed from must therefore be affirmed, with costs.