Hill v. Hoole

• Decision Date: 08 October 1889
• Citation: 22 N.E. 547,116 N.Y. 299
• Parties: HILL v. HOOLE.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 299

22 N.E. 547

HILL

v.HOOLE.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from judgment of the supreme court in the second judicial department, affirming judgment entered on decision of the court against the plaintiff. The action was brought against the respondent and others, to foreclose two mortgages upon land of which she had the legal title. And she alone defended. One of the mortgages was made by James Cook, in April, 1857, to secure the payment of $3,000. To the cause of action upon this the defendant pleaded payment and the statute of limitations. The other one was executed by the defendant upon the same premises, in August, 1877, to William E. Hoole, and by its terms appeared to have been made to secure the payment of $4,500, according to the condition of a bond of even date with it, also executed by the defendant, who by way of defense put in issue the allegations that she made and delivered this bond and mortgage, and alleged that it was without consideration. The plaintiff was assignee of both mortgages.

Uriah W. Tompkins, for appellant.

Edward G. Black, for respondent.

BRADLEY, J., ( after stating the facts as above.)

The alleged cause of action upon the Cook mortgage appeared to have been barred by the statute of limitations, and requires no consideration. The main controversy on the trial had relation to the validity of the other bond and mortgage for $4,500, executed by the defendant to her son, William E. Hoole, in August, 1877, and by him assigned to the plaintiff in November, and again assigned to him in December of the same year. The trial court found that the defendant received no consideration for the bond and mortgage, other than one dollar, and as conclusion of law that she received no consideration for them, and that the bond and mortgage never had any valid inception. The plaintiff excepted to such finding and conclusions, and to the refusal of the court to find as requested upon that subject. There was some evidence tending to prove that there was a consideration arising out of an undertaking, which it was claimed the mortgagee assumed, in respect to some indorsements the defendant had made of certain notes. The most that can be said of the evidence on that subject is that it was in conflict, and presented a question of fact, which was conclusively disposed of in the court below. No modification of that view is permitted by the fact that the mortgagee had on some former occasion given evidence in that respect which differed from that given by him upon the trial of this action. The measure of credibility to which his evidence was entitled cannot be considered on this review. The conclusion was warranted that the bond and mortgage were made without consideration; that they were made under a misapprehension that they were such; and therefore that they were not made to enable the mortgagee to make use of them by assignment. The proposition is well established that the assignee of a mortgage takes it subject to all the defense, legal and equitable, which the mortgagor has against the enforcement of it by the assignor at the time of the assignment. Bush v. Lathrop, 22 N. Y. 535;Greene v. Warnick, 64 N. Y. 220;Bennett v. Bates, 94 N. Y. 354, 363. Upon the assumption, therefore, that there was nothing in the way of making available the defense founded upon a want of consideration, the conclusion of the trial court directing judgment for the defendant may be sustained. Briggs v. Langford, 107 N. Y. 680, 14 N. E. Rep. 502. It is, however, urged that defendant having placed this bond and mortgage in the possession of the mortgagee, and enabled him to obtain value from the plaintiff upon them, is estopped from asserting the want of consideration as a defense. There is no finding of the circumstances or consideration of the assignment to the plaintiff. The court found that the plaintiff claimed that the assignment was taken by him as collateral security for a loan of $2,500, then made by him to the assignor. The plaintiff so testified. The court was not requested to find that precise fact, but was requested and refused to find that at the time of the assignment of the bond and mortgage the ‘plaintiff paid said William E. Hoole therefor the sum of $2,500, and subsequently advanced him other sums of money.’ If that fact may be deemed material for any purpose, the court was not required upon the evidence to find it. The interest of the plaintiff in the controversy presented a...