Livingston v. Dean

2 Johns. Ch. 478

Opinion

The Chancellor.'

From the admissions in the answer of G. P. Oakley, there is no doubt of his being bound in equity to account to the plaintiff for the bonds and mortgages so assigned to him by Bean. Though the assignee of a bond and mortgage takes it subject to all the equity of the mortgagor, yet as to the latent equity of a third person against the mortgagee, as possessor of the mortgage, the case is a little different. The assignee does not take the mortgage subject to such an equity, unless he has notice of it, expressly or constructively; and in this case, the notice is sufficiently admitted by the answer; and the defendant Oakley must be held to account for the amount of these bonds and mortgages, equally as Bean, from whom he received them, and who took and held them in trust for the original plaintiff. This principle of equity was lately declared, and applied in the case of Murray and Winter v. Lylburn and others.

Footnotes

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Decree accordingly.

Ante, p. 441