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was so proposed by the said Abraham Flagler and Tilley Morgan for their own exclusive accommodation, on account of some agreement or understanding between them, the said Tilley Morgan and Abraham Flagler, and not for any consideration received or agreed to be received, at that time or thereafter, by the plaintiffs or either of them, from the said Abraham Flagler, Tilley Morgan or either of them, or any other person on their or either of their behalf.
That the said Abraham Flagler was then the owner of the said property, and was reputed, and believed by the plaintiffs to be a man of great pecuniary responsibility, and also very punctual and honest in all his dealings; and the plaintiffs knowing the said Abraham Flagler and Tilley Morgan as acquaintances, and being of friendly disposition towards and desirous of accommodating the said Tilley Morgan, and supposing the promissory note of the said Abraham Flagler to be perfectly good and collectible, and that it would be certainly and positively paid when the same became due and payable, on that account, and on no other account, assented to the arrangement proposed by them, as abovementioned, and accordingly took the promissory note of the said Abraham Flagler, instead of the said mortgage, and permitted the said bond and mortgage to be executed to the said Abraham Flagler, instead of to the plaintiffs, which bond and mortgage are for the same amount and payable at the same time as the said note, to wit, on or before the 1st day of April, 1841.
That the said note was drawn for the said sum of $525.50, because that amount was the amount of the consideration expressed in the deed; but in point of fact, the said Tilley Morgan, previous to the execution and delivery of the said deed and bond and mortgage, had paid to the plaintiffs $200, part and parcel of the said consideration, and the said amount of $200 was, at the time of the execution and delivery of the said bond and mortgage to the said Abraham Flagler, or shortly afterwards, endorsed or receipted upon the said note and bond, respectively, leaving the amount actually due upon the same, respectively, upon the 1st day of April, 1840, $325.50, with the legal interest from that date, and no more.
That the said note, bond and mortgage were executed, delivered and received by the respective parties on and for no other consideration than as above set forth, and that the said Abraham Flagler had no title or interest or claim in and to the premises contained in said mortgage, legal or equitable.
That the said Abraham Flagler has, since the execution of the said promissory note, and before the same fell due by the terms thereof, become and still is insolvent, and the said promissory note, and every part thereof, is altogether unpaid and uncollectible. And the plaintiffs are informed and believe that the said Abraham Flagler was, at the time of the execution and delivery of the said promissory note, and the delivery of the said bond and mortgage, as aforesaid, insolvent, and knew that he was insolvent, or, if not then actually insolvent, that he then shortly expected so to be, or intended to become so, fraudulently or otherwise; and that he, the said Abraham Flagler, fraudulently effected the arrangement above set forth, and procured the execution and delivery of the said bond and mortgage to him, the said Abraham Flagler, instead of to the plaintiffs, for the express purpose of defrauding them and cheating them out of the amount secured to be paid by the said mortgage. And that the said balance of $325.50, so as aforesaid due, on and by said bond and mortgage, on the 1st day of April, 1840, and the interest thereon, still remains due and payable, and wholly unsatisfied, and that
the said Tilley Morgan has had notice of all the abovementioned facts and circumstances.
That since the receipt, by the plaintiffs, of the said promissory note of the said Abraham Flagler, and before the commencement of this action, the plaintiffs, as executors of the said Samuel Van Cott, deceased, have had a final accounting before the surrogate of Dutchess county, and the said surrogate, in making his decree on said accounting, has adjudged and decreed that the plaintiffs were personally responsible for the said purchase moneys 80 as aforesaid due on the sale of said real estate, and for which said promissory note of said Abraham Flagler was received and accepted as aforesaid ; and the plaintiffs, in pursuance of such decree, have paid to the creditors and legatees, and others entitled to the moneys of said estate, the whole amount of the said decree, including the amount of the said balance of said promissory note and said bond and mortgage, and have thereby become the equitable owners in their own right of the said bond and mortgage, or of the said moneys so as aforesaid still due on the said sale and purchase, and invested, in their own right, with all the equitable remedies they would or could have had as such executors.
That the said Tilley Morgan, since the giving of the said bond and mortgage, always has been, and still is, the owner of the premises contained in the said mortgage.
That the rights of no bona fide purchasers have attached to the said bond and mortgage, or the money intended to be secured thereby, neither have any legal or equitable interests of any kind, as against the plaintiffs.
* This allegation is merely the statement of a conclusion of law, and is consequently unnecessary and improper. I have allowed it to remain, however, as more clearly explaining the nature of the relief to which the plaintiff was entitled.
That the plaintiffs have applied, in a friendly manner, to the said Abraham Flagler, and requested him to pay the said promissory note, or to assign the said bond and mortgage, or otherwise reinstate the plaintiffs in their rights, in respect to their said purchase moneys, which he refuses to do.
That the said Abraham Flagler has, in form, assigned the said bond and mortgage to the said defendant, Benjamin S. Thorn, and that he, the said Benjamin S. Thorn, pretends to be the lawful holder thereof, which the plaintiffs deny, but allege the truth to be, that said assignment to the said Benjamin S. Thorn was made for the purpose of securing him, the said Benjamin S. Thorn, against any liability to pay a certain promissory note for $200, or some other sum, dated on or about the 28th day of September, 1840, and payable, in sixty days from date, at the Dutchess County Bank, drawn by the said Abraham Flagler to the order of the said Benjamin S. Thorn, which the said Benjamin S. Thorn had endorsed for the accommodation of the said Abraham Flagler, but that the said promissory note was never discounted by the said Abraham Flagler, or any other person in his behalf, nor has the same been transferred to any bona fide holder, of all which the said Benjamin S. Thorn had notice before the commencement of this action; and the plaintiffs herein and hereby offer to deliver up the said note to the said Abraham Flagler, or his order, or to bring the same into this court to be canceled, as this court shall direct.
Wherefore the plaintiffs demand judgment, that the said Benjamin S. Thorn assign and the said Tilley Morgan pay to the plaintiffs the said bond and mortgage, or that the said bond and mortgage be delivered up to be canceled on account of the fraudulent actings and doings of the said Abraham Flagler in procuring the execution of the said bond and mortgage to him, or on account of the same being executed to him, without any consideration passing from him, or any other person in his behalf, to the plaintiffs; and in case said bond and mortgage shall be adjudged to be canceled, as last mentioned, that then it may be further adjudged that said Tilley Morgan shall pay to the plaintiffs, as the equitable mortgagees of the said lands and premises, the balance of the said purchase money, so as aforesaid due from the said Tilley Morgan, on demand, or within such time as this court shall deem fit and reasonable; or that the said premises be sold according to the course and practice of this court, on the sale of lands on the foreclosure of such mortgage; or that the said Tilley Morgan be decreed to pay to the plaintiffs the said balance of purchase moneys; or that, in default thereof, he, and all persons claiming under him, may be absolutely barred and foreclosed of and from all right and equity of redemption in and to the said mortgaged premises, and every part thereof, and may deliver up to the plaintiffs all deeds, papers and writings, in his custody or power, concerning the said mortgaged premises, or for such further, &c., [as in No. 1.]
By heir-at-law of deceased mortgagor, against mortgagee in
possession, for redemption of mortgaged premises.
Title of the Cause.
The plaintiff complains of the defendant, and alleges the following facts, constituting his cause of action :
That A. B., who was the plaintiff's father, was, at the date of the execution of the mortgage hereinafter mentioned,