Gardner v. Adams

12 Wend. 297

Opinion

By the Court,

Savage, Ch. J.

This judgment cannot be sustained. The revised statutes render mortgages of personal property, as well as absolute conveyances, fraudulent and void prima facie as against creditors or bona fide purchasers, unless possession accompanies and follows the deed. Formerly this was not required in mortgages, if the possession was consistent with the deed. Under this^s'tatute, we hold that possession remaining in the vendor or mortgagor may be explained; and if reasons can be shown which negative any intent to defraud creditors or purchasers, the sale or mortgage is held valid. In this case no reason is shown, only that it was for the accommodation of the mortgagor. That reason might be assigned in every case; and if held sufficient; the burthen of proving fraud would be thrown upon the plaintiff; whereas, the statute intended that those concerned in such a transaction should be obliged to prove it not only done upon good consideration, but free from all intention of defrauding anvone, or defeating any creditor in the collection of his debt.

But if the mortgage was free from all objection of this kind, there seems an insuperable difficulty in the plaintiff’s title. The defendant below was guilty of a conversion on the filth of July, 1830 — long before the assignment. Hard, at that time, had a right of action for the bureau; but that right of action is no more assignable than a right of action for any other tort— an action of trespass for instance, or an assault on the person. On this ground, the plaintiff below must fail.

Again; the substance of the transaction of the assignment seems to have been an intention to substitute Adams in the place of Hard; but the mortgage was discharged by Hard as to his own debt, and the payment to Goodrich of the debt, for which Hard was liable, discharged the mortgage as to that demand. Hard had no interest to assign.

Judgment reversed.