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Statement of case.

Thomas v. Stone, Walk. Ch. 117; Me Bee v. Loftus, 1 Strohb. Eq. Rep. 90; Harris v. Norton, 16 Barb. 264; Story v. Lord Windsor, 2 Atk. 630; Hardingham v. Nicholls, 3 id. 304; Doswell v. Buchanan, 3 Leigh, 365; Jewett v. Palmer, 7 Johns. Ch. 65; Paul v. Fulton, 25 Mo. 156; Wormly v. Wormly, 8 Wheat. 449; Dugan v. Vattier, 3 Blackf. 245; Lewis v. Phillips, 17 Ind. 108; Patten v. Moore, 32 N. H. 382; Blanchard v. Tyler, 12 Mich. 339; Palmer v. Williams, 24 Mich. 328; Hunter v. Shirrall, 5 Litt. 62; Tourville v. Naish, 3 P. Wins. 306; Jones v. Stanly, 2 Eq. Cas. 685; Merritt v. N. R. R. Co., 12 Barb. 605; Jackson v. Cadwell 1 Cow. 622; Freeman v. Deming, 3 Sandf. Ch. 327; Sırayze v. Burke, 12 Pet. 11; Matson v. Heirs, 42 Mich. 473; Campbell v. Roach, 45 Ala. 667; Perry on Trusts, §§ 219, 221; 2 Pom. Eq. Juris. 750; Clements v. Moore, 6 Wall. 299; Holme v. Karsper, 5 Bing. 469; Clifton v. Sheldon, 23 How. Pr. 481; Vallett v. Parker, 6 Wend. 615.) The defense of a former adjudication is not available. (Dawley v. Brown, 79 N. Y. 390.) No point can be made on the erasure of the signatures. (Trull v. Skinner, 17 Pick. 213; Patterson v. Yeaton, 47 Maine, 308; Ford v. Olden, L. R. [3 Eq. Cas.] 461; Holdridge v. Gillespie, 2 Johns. Ch. 30; 2 Washb. on Real Prop. 63, 119; Russell v. Southard, 12 How. Pr. 139, 154; Villa v. Rodriguez, 12 Wall. 323; Morris v. Nixon, 1 How. Pr. 118; Platt v. McClure, 3 Woodb. & M. 151; Hyndman v. Hyndman, 19 Verm. 9; McKinstry v. Conly, 12 Ala. 678; Hicks v. Hicks, 5 G. & J. 75; Scheckell v. Hopkins, 2 Md. Ch. 89; Wynkoop v. Cowing, 21 Ill. 570; Davoue v. Fanning, 2 Johns. Ch. 252; Brown v. Gaffney, 28 Ill. 149; Lockes v. Palmer, 26 Ala. 312; Baugher v. Meyryman, 32 Md. 185; Mills v. Mills, 26 Conn. 213; C. C.Bank v. Risley, 19 N. Y. 575.)

Rollin Tracy for respondents. The property sought to be reached and applied, by this action in equity, upon the attachment judgment, is such as can be reached only by the aid and instrumentality of a court of equity, and, therefore, constitutes what is denominated equitable assets. (Story's Eq. Juris.

Statement of case.

§ 552; Willard's Eq. Juris. 562; Blank v. Thurber, 50 N. Y. 80.) No lien is effected upon equitable assets, either real or personal, by virtue of an attachment levied thereon in an action wherein the debtor is a non-resident, and service of the summons was made without the state or by publication, pursuant to an order for that purpose, and the debtor has not appeared; nor will a judgment entered by default in such action become a lien upon such assets; nor will a court of equity, by means of a creditor's bill based on such attachment and judgment, acquire jurisdiction of equitable assets or entertain an action to reach and apply the same in aid of the attachment or in satisfaction of the judgment. (Gibbs v. Q. Ins. Co., 63 N. Y. 125; Shephard v. Wright, 113 id. 582; Pennoyer v. Neff, 95 U. S. 714; Freeman v. Alderson, 119 id. 185; Code Civ. Pro. $$ 635, 645, 646, 647, 649, 650, 707; Rinchy v. Stryker, 28 N. Y. 45; Lawrence v. Bank of Republic, 35 id. 320; Thurber v. Blank, 50 id. 80; Bowe v. Arnold, 38 Hun, 256; 101 N. Y. 652; Dunlery v. Tallmadge, 32 id. 457; Scythe Co. v. Forster, 36 id. 561; Sturges v. Vanderbilt, 73 id. 384; Castle v. Lewis, 78 id. 131; Bills v. Bank, 89 id. 343; Gibson v. Bank, 98 id. 87; Adsit v. Butler, 87 id. 590.) The deeds to Howland, Smith and Tracy conveyed the absolute title in fee in the premises conveyed, and Lucilia Tracy had no interest, equitable or otherwise, in the premises at the time of the attempted levy under the attachment, and has since had no interest therein, and for that reason the action was properly dismissed. (Jones on Mort. [3d ed.] §§ 260, 261, 267, 269, 270, 272, 338, 339; Glover v. Payn, 19 Wend. 519; Matthews v. Shehan, 69 N. Y. 591; Macauly v. Porter, 71 id. 173; Randall v. Sanders, 87 id. 578; Kramer v. Adelsberger, 122 id. 476; Macaulay v. Smith, 10 N. Y. Supp. 578; Code Civ. Pro. § 1337; Verplank v. Member, 74 N. Y. 620; Bird v. Meyer, 113 id. 567.) The New York Baptist Union for Ministerial Education, having no notice of the agreement, took the title in fee of the premises, whether the original transaction constituted a sale or an equitable mortgage. (Stoddard v. Rotton, 5 Bosw. 378; Hogarty v. Lynch, 6 id. 144; TarSICKELS-VOL. LXXXVII.

67

Opinion of the Court, per LANDON, J.

bell v. West, 86 N. Y. 280; Code Civ. Pro. § 1337; Verplanck v. Messeler, 74 N. Y. 620; Bird v. Mayer, 113 id. 567; 3 Wait's Act. & Def. 474; Wait on Fraud. Conv. [2d ed.] §§ 386, 631; Barnard v. Campbell, 65 Barb. 286; 55 N. Y. 450; 58 id. 73; Viele v. Judson, 15 Hun, 328; Jackson v. Bartlett, 10 Johns. 195.)

LANDON, J. The agreement which antedated the deeds by one day and expressed their intent and purpose should be read in connection with them. Thus read, the deeds are shown to have been given by Lucilia Tracy to Howland, Smith and Tracy "for the purpose of securing and in consideration of said loan of $8,240" made by the grantees to the grantor and "that the said deed * * is a security for said loan for

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a term not exceeding one year from the date of said deed *** and that upon the repayment of said sum of $8,240, with interest within or at the expiration of one year by the said Lucilia * * * the said Howland, Smith and Tracy are to reconvey said premises to said Lucilia, and

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in case said sum of $8,240 shall not be repaid during or at the expiration of one year as aforesaid, then it is understood and agreed that the said deed is to become and be a deed absolute, and the said Howland, Smith and Tracy are to become and be the owners in fee simple absolute."

The deeds are thus clearly shown to have been intended as mortgages. This conclusion is also inferable from the facts. The premises at the date of the deeds were worth $30,000. The judgments against the premises were by the terms of the agreement to be paid from the money loaned, and presumably were either paid or their amount retained by the grantees from the $8,240. The amount of the outstanding mortgages against the premises was $7,000. It is not presumable that Lucilia Tracy intended to sell property worth $30,000 for $15,240. The grantor remained in possession of the premises for about two years after the delivery of the deeds. She was embarrassed and straightened for money. Stress is laid by the defendants upon the fact that the grantor did not expressly

Opinion of the Court, per LANDON, J.

covenant to repay the money. The cases are to the effect that this is one of several circumstances to be considered (Horn v. Keteltas, 46 N. Y. 605; Morris v. Budlong, 78 id. 552; Brown v. Dewey, 1 Sand. Ch. 57), and here it is to be considered in connection with the repeated statement that the money to be advanced by the grantees is a loan and that" said deed is a security for said loan for a term of not exceeding one year," and that upon repayment the grantees should reconvey to the grantor. It is plain that repayment of the loan was contemplated; nothing is said of the repayment of purchase money, and there is nothing in the agreement indicating that the money advanced by the grantees was purchase-money, except that in case said sum of $8,240 (previously termed a loan), should not be repaid at the expiration of one year, "then it is understood and agreed that the said deed is to become and be a deed absolute," thus clearly indicating that at the date of the transaction said sum was not purchase-money and said deed was not a deed absolute, but was to become so in case of nonpayment of the loan.. Clearly upon the undisputed facts the deeds were a mortgage to secure the money loaned, and the trial court erred in refusing the plaintiff's request so to find. The agreement that the non-payment of the loan within the time specified should convert the mortgage into an absolute deed did not have that effect. The agreement to turn a mortgage into an absolute deed in case of default is one that finds no favor in equity. The maxim "once a mortgage always a mortgage" governs the case. (Horn v. Keteltas, supra; Murray v. Walker, 31 N. Y. 400; Carr v. Carr, 52 id. 251; Remsen v. Hay, 2 Edw. Ch. 535; Clark v. Henry, 2 Cow. 324; Morris v. Nixon, 1 How. [U. S.] 118; Villa v. Rodriguez, 12 Wall. 323; 4 Kent's Com. 143.) Since the deeds were a mortgage the title did not pass to the grantees but remained in Lucilia Tracy. (Barry v. Hamburg B. Fire Ins. Co., 110 N. Y. 1; Thorn v. Sutherland, 123 id. 236; Shattuck v. Bascom, 105 id. 39.)

The levy under the plaintiff's attachment was, therefore, upon Mrs. Tracy's land to which she had the legal title. It

Opinion of the Court, per LANDON, J.

was not merely an attempted levy upon her equitable right to obtain title. As against Howland, Smith and Tracy the levy was valid and the judgment and execution which followed the attachment became a specific lien upon the land itself, and the land could be sold upon execution.

Howland, Smith and Tracy conveyed the premises before the attachment was issued to the defendant, the N. Y. Baptist Union for Ministerial Education. This defendant by its answer admits that $3,000 of the purchase-money, with interest from January 1, 1883, remains unpaid, and that $1.550 of the principal of one of the mortgages upon the premises given by Mrs. Tracy also remains unpaid. This defendant in order to maintain the defense that it is a bona fide purchaser without notice of plaintiff's rights, must have paid all the purchasemoney. (Sargent v. Eureka S. A. Co., 46 Hun, 19; Harris V. Norton, 16 Barb. 264; Jewett v. Palmer, 7 Johns. Ch. 61; Jackson ex dem. v. Cadwell, 1 Cow. 622; Boone v. Chiles, 10 Peters, 179; Patten v. Moore, 32 N. H. 382.)

In equity it has not completed its purchase, but to the extent of its payments innocently made before notice of plaintiffs claim is entitled to protection. It may, therefore, retire from the transaction without actual loss and without further impairing the rights of the plaintiff.

The action is in aid of plaintiff's execution. Its object is not to reach any equitable assets of Mrs. Tracy, but to strip from her legal title to the premises in question the obstructions created by the deed by which such title, apparently but not in fact, passed from her to Howland, Smith and Tracy, and from them to the Baptist Union, and thus to show that the lien acquired by plaintiff's attachment of the premises and perfected by her judgment and execution was valid, and, therefore, may now be enforced free from the obstructions which seemed to defeat it. Such an action is within the equitable jurisdiction of the court. (Beck v. Burdett, 1 Paige, 305; Heye v. Bolles, 33 How. Pr. 266; Rinchey v. Stryker, 28 N. Y. 45; Frost v. Mott, 34 id. 253.) Thurber v. Blanck (50 N. Y. 80) does not hold otherwise, but does hold that the attach

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