Page:Federal Reporter, 1st Series, Volume 7.djvu/705

 OLIVEK V. OtJNNINGHAM. 698 �property in Cunningham, if we keep in view his embarrassed condition, it is plain that it was with the object to save the excess of its value over his indebtedness. Whatever may be Baid in relation to Cunningham's acta prior to the convey- ance to him of September 3d, his transactions respecting the property subsequent to that time, as well as those of his co-defendants, -which Oliver charges to have been fraudulent, required to be closely scrutinized as dealings between a mort- gagor of the property in question and a mortgagee who en- tered into possession under a conveyance, one purpose of which was to enable him to make the amount of his mort- gage out of the property, as we entertain no doubt that not- withstanding the paper assignment of Cunningham to his co-mortgagees, in view of the subsequent dealings of the parties, and of the fact that intelligence of such assignment was not communicated to Oliver, Cunningham, Hunt, and Eschelman retained a common interest in the mortgage, and that Cunningham, for all tho purposes of this case, at ledst, must be treated as though such assignment had never been made. What seems to be conclusive upon this subject ie the «se which Cunningham was subsequently allowed to make of this mortgage seourity in contributing it as capital in the copartnership formed January i, 1869; and it must be held, in view of all the facts in the case, that Cunningham, in the formation of that firm, represeuted his co-mortgagees, Hunt and Eschelman, as well as himself. It must be held, also, that George J. Eobinsou represented in said firm himfeelf and his father, Henry M. Eobinson, as well. �The testimony in the case abundantly establishes that all of these defendants must have known of the trust with which the property was charged; and we think that it is also estab- lished that the transfer to Eobinson, Haines, and Eanney, and the subsequent dealings with the property under the firm name of Cunningham, Eobinson, Haines & Co,, were in the interest of all the defendants. It should be borne in mind that, at the times of these transactions, each of these defendants stood in the relation of either creditor or mort- ��� �