Page:Federal Reporter, 1st Series, Volume 7.djvu/852

 840 FEDERAL REPORTER. �on record." Hartwell Wagg, in his exaraination, also states "it was tept from record until August, 1880, to help the credit of Irving & Wagg." There can be no doubt, there- fore, that the mortgagors expected that the mortgage -would not be recorded immediately, and were apprehensive of seri- ons consequences to their credit if it should be done. What- ever might have been the expectations of the mortgagors in this behalf, and however fraudaient may have been their purpose and design, the rights of the mortgagees — there having been a complete execution and delivery of the instru- ment by its makers to May, for the benefit of the mort- gagees, and having subsequently incurred liabilities as indorsers, within the condition of the mortgage, to the amount of near $4,000 — are not to be impaired by fraud- ulent purposes of the mortgagors, unless the mortgagees in some way became parties thereto and assented to such fraudulent purpose. This is most positively and directly denied by both of the mortgagees, who assert that nothing was ever said, by either of them, about withholding the mort- gage from record; that they never made any such agree- ment with either Irving or Wagg, and never had any such understanding, but were at full liberty to record the same at iany moment; and in this respect these statements are corroborated by the testimony of May, who declares that he never made any such agreement, and that, at the time the mortgage was executed and delivered to him by the mort- gagors, there was nothing said about not recording it ; that after the instrument was completed, in a day or two, he informed Joshua M. Wagg he held the paper for him, and his impression is that he told him it should be recorded, to which Joshua made answer for him to keep it, and he would call for it. �It is claimed that if it should be conceded that the mort- gagees were not personally parties to an agreement not to record the mortgage, that they are still to be held charge- able by reason of the arrangement to this effect between the mortgagors thereby to sustain their credit and defraud sub- ��� �