Page:Federal Reporter, 1st Series, Volume 6.djvu/238

 226 FEDERAL REPORTBB. �if in his possession or under his control ; that the same de- cree may be entered against Brylan, if they should be in hia possession or under his control; and that Marley may be decreed to- pay the mortgage debt and aeorued intereat to the complainant, and may be protected by the decree of the court from the bond and mortgage, if they should not be in the hands of the complainant to be surrendered and can- celled on the payment and discharge of the same. �The defendant Elisha Euckman, in his answer, admits the loan of $6,000 by him to Marley, and the execution of the boi^d and mortgage to Brylan to secure the payment thereof ; and also the execution of an assignment of the same to the complainant ; but he claims that he retained the possession of the papers; that they were never delivered to the com- plainant ; that no gif t was made by him to her, nor intended to be made ; and that after she deserted his bed and board, to-wit, about the teath of March, 1879, he surrendered the assignment, -which had beeUi formally made to the complain- ant, to Brylan, to be destroyed, and also delivered to him the bond and mortgage, in consideration of which Brylan gave to him his promissory note for $5,000, payable in one year from September 27, 1878, — the date of the mortgage, — and thathe had no further interest in the same. Although hundreds of pages of testimony have been taken, the only question in the case is whether the complainant is the owner of the bond and mortgage on which the suit is founded. If she is not, her action muet fail, whoever else the owner may happen to be. And this question is determined when we ascertain whether the complainant has shown a sufficient delivery to render the assignment effectuai to vest in her the title to the mortgage. The complainant herself bas been examined, and I have care- fuUy read her testimony upon this point. It falls short of the legal requirements in such a case. She does not pretend that the papers were ever in her possession or delivered to her. The most that she claims is that they were promised to her. The substance of her evidence is that Ruckman, her husband, told her on several occasions that he would make such a loan for her benefit ; that be afterwards informed her he had done ��� �