Page:Federal Reporter, 1st Series, Volume 10.djvu/140

128 FEDERAL REPORTER. �The fraiidulent purpose of Eugene Cammeyer and Mrs. Fish would not affect a bona fide purchaser. Carpenter v. Muren, 42 Barb. 300 ; Bar- ney v. Griffen, 4 Sandf. Ch. 552. �No question of usury being presented by the pleadings, nor any law of the state regulating the rate of interest being pleaded or proved, no question on that point can be here considered. Newell v. Nixon, 4 Wall. 672, 583; Morford v. Davis, 28 N. Y. 481. �The cases cited by the complainant, to the effect that the assignee of a mortgage takes it subject to the same defences and equities which existed against the assignor, (Schafer v. Reilly, 50 N. Y. 61, and cases cited,) have no application where the sale and assignment are by the authority of the mortgagor, and are a part of the mode intentionally adopted for creating a charge on the land. In such cases the mortgagee is, in effect, the agent of the mortgagor, acting under a power to create, through an assignment to a purchaser, a legal encumbrance upon the property, and when this power is exe- cuted according to the intention the mortgagor becomes bound by the debt thus created. �The deed from Eugene Cammeyer to Mrs. Fish, dated January 29, and recorded March 6, 1874, was suf&cient, inter partes, to pass the title to her. Her assent is sufficiently proved, and recording the deed was a good constructive delivery to her. But it was manifestly void as against creditors, and as against the assignee in bankruptcy. Section 5046 of the United States Revised Statutes declares that property thus conveyed in fraud of creditors shall * • * "imme- diatelyupon his appointment be vested in the assignee," and his title when appointed, it has been held, relates back to the commencement of proceedings in bankruptcy. Upon this ground it is urged on be- half of the complainant that his title is two days prior and therefore paramount to that of Lambert, and that therefore the mortgage never became any lien upon the property. �The general rule, bowever, is that where a title has been trans- ferred by acts which are fraudulent, and therefore void, as against creditors or others, third persons who deal with the fraudulent grantee in good faith, without notice of the fraud, and before any legal pro- ceedings have been taken, as by execution levied or by bill filed to avoid the fraudulent transfer, will be protected to the extent of their advances in any title or lien so acquired in good faith, and without notice of the fraud, (Fletcher v. Peck, 6 Cranch. 133, per Marshall, C. J. ; Jackson v. Henry, 10 Johns. 185, 197 ; Jackson v, Walsh, 14 Johns. ��� �