Dunham v. Gates , 1848 N.Y. LEXIS 193 ( 1848 )

The Chancellor.

The bond and mortgage being prima facie evidence of a good consideration, the onus of showing that they were given without consideration, or for the purpose of defrauding the complainant, rests upon him; and if he has not established it by the answer of the defendants, he must, of course faij in the suit. If the Chesters had not joined in the answer with Gerrit Gates, who had no interest in the bond and mortgage at the time of the commencement of the suit, no admission in his answer would have affected their rights. And the only way in which the facts stated by him could have been made available against the Chesters, in favor of the complainant, wmuld have been to dismiss the bill as against Gerrit Gates, and examine him as a witness. But by joining with him, in their answer, and swearing that what he states as matters within his own knowledge they believe to be true, they have entitled the complainant to the benefit of the discovery if the answer makes out a case of fraud in the giving of the bond and mortgage. On the other hand, if the answer does not establish the fraud charged by the complainant, the respondents-are entitled to the benefit of all the facts sworn to by the defendant Gerrit Gates, responsive to the charge of fraud and want of consideration, to the same extent that Gates could avail himself of them as evidence in his own favor.

The only question therefore is, whether the answer shows a case of fraud in the giving of this bond and mortgage ? For if it does not, the complainant has failed in establishing the charge made in his bill. And I think the assistant vice chancellor came to the correct conclusion in deciding that the fraud was not established by the admissions in this answer; the whole of which answer, so far as related to the consideration of the bond and mortgage, the circumstances under which they were given, and the reasons for giving them, was directly responsive to the bill, and was also called for by the special inter; rogatories contained therein. The fact that no administration had been taken out upon the estate of the father of G. and C. Gates was wholly immaterial, so far as the complainant was concerned, if the amount due and coming to the other members of the family who consented to the arrangement, out of the indebtedness of C. Gates to the estate, was as stated in the answer. Although the answer does not leave the case entirely clear from suspicion, it certainly contains nothing which could justify any court in saying that a clear case of fraud is made out by the admission in this answer.

The decree appealed from must therefore be affirmed with co^ts,