Lawrence v. Conklin ( 1879 )

Dykman, J.:

If this mortgage can be foreclosed, and a good title can be obtained to the premises under the judgment, then there is opened up an easy way to deprive land owners of them property without compensation, and without their knowledge or assent; and if this scheme succeeds there is no reason why the case should remain long a solitary one, as there are doubtless many persons as confiding and unsuspecting as old Mr. Conklin, and Millard is not the only one of his like, extant. The success of the plaintiff would also show that if the possession of a deed can be obtained by fraud and deception, conveying land to the person receiving it, then the grantee can make a conveyance which will vest a good title, although he had none himself to convey. Here Millard, by false representations, procured the possession of the deed for a specific purpose. It was not delivered to him as a conveyance, and he took nothing under it. Then he made a pretented conveyance of the premises to Ferguson, who knew at least that he had not fulfilled his contract with his grantor. Ferguson, who then made a deed to Ellen Van Tassel, and took back the mortgage in question, which he assigned to the insurance company, who took it subject to all the equities existing between the mortgagor and mortgagee. (Greene v. Warnick, 64 N. Y., 220.) As, therefore, Ferguson took no title from Millard, because he had none to give him, so Ellen Van Tassel took no title from Ferguson because he had none to give her, and as she took no interest in the land under her deed she could create no incumbrance thereon by her mortgage.

It is true the insurance company was an honest holder of the mortgage, and the money so received on the assignment was probably the first that had been realized from the fraudulent scheme ; yet that is not sufficient. As Ferguson could not have enforced this mortgage against either the mortgagee or Conklin, neither can the plaintiff do so, as he occupies the same position. If there had been no fraud in the transaction, and Conklin had voluntarily placed Millard in the position he seemed to occupy, as the grantee in the deed to him, then Conklin would have been responsible for the appearances which he created, and been estopped from denying the title of a bona fide purchase from Millard. But fraud vitiates every transaction into which it enters, and here the fraud was most gross and wicked. An aged man of more than four score years is induced by his lawyer, in whom he had been doubtless accustomed to confide, to execute and deliver to him a deed of conveyance of all he had on earth, for the purpose of exhibition, to facilitate a sale which the old man had been long desirous of making. Instead, however, of answering the trust reposed in him he attempted to convey the property in his own interest, and perpetrated the fraud which had its climax and fulfillment when the money was obtained from the insurance company on the mortgage in question.

Upon such a transaction a court of equity will lay no light hand, but will stamp it with its strong condemnation, wherever or however it may be presented ; and one of the most pleasing duties that the courts perform is to frustrate and prevent the consummation of such schemes of fraud and wrong.

The judgment should be affirmed, with costs.

Present — Gilbert and Dyxman, JJ.; Barnard, P. J., not sitting.

Judgment affirmed, with costs.