Merrick v. Butler

2 Lans. 103

• Court: New York Supreme Court
• Decided: December 15, 1869
• Status: Published

Opinion

By the Court

— Foster, J.

The testimony fully justified the finding of fact in this case ; and the question is, was Harcissa Voorhees, liable in her lifetime on the note; and especially, was she so liable after she acknowledged satisfaction of the mortgage which Hutchinson executed to her.

The plaintiff purchased the note long after it became due, and after the death of the maker, and he was not therefore a bona fide holder for value, and had no greater rights as its holder, than Hutchinson had, while the note was owned by him.

The case of Nellis v. Clark, in error (4 Hill, 424), is conclusive on the point, that in an action on a promissory note brought by one not entitled to be treated as a bona fide holder, the maker may defend on the ground, that the note was given in consideration of land sold for the purpose of defrauding creditors, and this though, he himself was a party to the fraud; and, of course, the rule is the same, where the note was given in consideration of a mortgage upon the property where the purpose was the same.

Again, while Hutchinson was the holder of the note, Uarcissa Voorhees acknowledged satisfaction of the mortgage without consideration therefor, and therefore, independent of the question of fraud, he had no valid claim against her on the note, and the debt created thereby was extinguished, and the plaintiff who purchased it afterward, and after it was due took it subject to each of the above defences.

The judgment should be affirmed.

All concurring. Judgment affirmed.