Fey v. Fey

27 N.J. Eq. 213

• Court: New Jersey Court of Chancery
• Decided: May 15, 1876
• Status: Published

Opinion

The Chancellor.

The defendant George M. Ward, who, through sale under -a judgment, became the owne? of the mortgaged premises after the recording of the complainant’s mortgage, in his answer sets up fraud as a defence to that mortgage. He alleges that the mortgage was given without consideration and in fraud of the creditors of Louis Fey, the mortgagor. His ■counsel insists that he is entitled to the benefit of his answer in support of this defence, and that the answer is responsive do the bill on that head, and is therefore conclusive unless ■overcome by proof on the part of the complainant. The matter thus pleaded is set up in avoidance of the complainant’s claim, and it is a settled rule that such matter must be proved otherwise than by the answer. The testimony produced is of two kinds: proof of declarations and admissions ■•of the mortgagee, which, it is insisted, show fraud; and testimony as to the business, wages and other pecuniary resources •of the mortgagee, offered to show the improbability of his having been, at the time of making the mortgage, the creditor ■of the mortgagor, (who is his son-in-law,) to the amount of .$1500, the principal of the mortgage. The defence is not ¡proved. There will, therefore, be a decree for the complain-, ant.