Fish v. French , 81 Mass. 520 ( 1860 )

Dewey, J.

The note purporting to be secured by the mortgage deed of Samuel C. Kenyon and his wife Phebe Kenyon first passed into the hands of the defendant more than eight years after the same was by its terms due and payable. It was a dishonored note, and of course taken subject to any defence that might exist to the payment of the same. Flavius P. Noble, the payee of the note, is now called as a witness to prove, not merely that the note was originally without any consideration ; but that, long after the time of payment of the note, it was given up to the promisors, and then again placed in the hands of Noble for another purpose than as a note to be paid; and also to prove that the defendant was informed of all these facts and took the note with full knowledge of them, and fraudulently as respects the makers. The indorser of a note under these circumstances, is a competent witness. Thayer v Crossman, 1 Met. 416

Upon the case as found by the evidence, there is nothing justly due upon the note, and of course nothing for the mortgage to stand as security for. Any attempt to enforce the same would be fruitless. The plaintiff therefore properly asks that the mortgage may be cancelled, and the defendant required to release all claim to the premises under the mortgage. This, we think, he should be required to do, without any payment to him, and the plaintiff is to recover the costs of the present suit. Decree for the plaintiff