Page:Federal Reporter, 1st Series, Volume 10.djvu/139

 TADDOCK V. FISH. 127 �declared invalid for the same reason. The defendant Lambert alonean- swered.claiming protection as a 6o7ia.^de purchaser. Augustus Cammeyer and the attomey of Mr. Lambert, his son, who chiefly conducted the negotia- tions, both died before any testimony was taken. Pending this suit the prop- erty wks sold by the plaiiitifE, and sufflcient of the proceeds to cover the mort- gage irt' question was paid into court to abide the event of the suit. No question of usury was raised by the pleadings or at the trial. �W. B. Putney, IOT GomT^lamani. �J. Ti Mareart, for defendant Lambert. -■ > �Brown, D. J. On the facts in this case it is not entirely clear that the mortgage of $1,000 exeoated by Mrs. Fish to Augustus Cam- meyer foi: the use of Eugene, a month aftor the latter's deed to her for his own use, should not be held as valid a charge upon the land, as against her, as if it had been a consideration mortgage given at the time the deed was made, being executed in pursuance of the underatanding that she took the title for Eugene's benefit, and Augus- tus boing' a mortgagee upon a secret trust for Eugene. Apart from this consideration, however, the bond and mortgage had no legal force or efifect until they were negotiated to Lambert upon the twen- ty-first day of March, 1874. In the hands of Augustus Cammeyer they would not represent any existing debt or obligation, or consti- tute any lien upon the property. But it is proved that they were exe- cuted by Mrs. Fish to Augustus for the purpose of being sold to raise money upon them. They were sold in precisely the manner intended, and the money procured thereby was also applied to the use of Eu- gene, as it was intended by Mrs. Fish that it should be applied. The assignment to Lambert, the purchaser, was, therefore, by the author- ity of Mrs. Fish; it was an act by whioh she intended the land should stand charged with the amount of the mortgage ; and the exe- cution of the bond and mortgage by her, and the assignment of them to Lambert, are, in legal efiect, but different parts of one transaction, whereby the land was intended to be held for the amount of the bond. Until the assignment it was inchoate and incomplete. When thus negotiated to a hona fide purchaser it beeame as against Mrs. Fish, aside from any usury law, a binding obligation to the extent of the money advanced upon it, and must therefore have the same force against the assignee in bankruptcy as a bond and mortgage for that amount would have had if executed directly by Mrs. Fish to Lambert on the day the assignment to him was executed, viz., on March 2lBt, two days after the commencement of proceedings in bankruptcy. ��� �