Page:Federal Reporter, 1st Series, Volume 8.djvu/518

504 FEDERAL REPORTER, �clusion, from this circumstance alone, that the mortgage was under- stood to be fraudaient as to the excess of |3,500, so far as they are concerned. �But when H., D., and T, soughl to foreelose their mortgage on the same property, and made L. & B. defendants in their suit, the latter answered, setting up the lien of their judgment in the county court for $348.82, and also alleged that they had a mortgage on the prop- erty for $10,000, whieh was then "in full force." The bill alleges that this answer was made with intent "to defraud" the plaintiff out of its debt by making it appear that L. & B. had a mortgage to secure an actual indebtedness of $10,000, insteadof one for only $3^500. It may be admitted that the allegation in the answer is literally trne— that the mortgage was "in full force" — but, nevertheless, itiwas cal- culated to make a false impression. It may have been "in full force" as a security for $3,500, oir because it was uncaneelled or not satis- fied, but not otherwise ; . for in f act almost two-thirds of it was ficti- tious from the beginning, and so far never had any force. But this circumstance of itself eannot impair the validity of the mortgage, if it was otherwise valid. It is only material, in this connection, as the subsequent act or conduct of one of the parties to the transaction, that may serve to throw light upon the purpose and intent with which it was orjginally made and received. But when it is considered that there is no other act or declaration of the mortgagees that can be construed into an assertion or claim that this mortgage was in "force" otherwise than as security for the amount really loaned upon it — $3,500 — and that in the suit in which this answer was made L. & B. only claimed and took a decree, February 11, 1879, for the sum ac- tually due them, — $3,816.16, — wedo not think this answer is sufficient to characterize the original transaction as fraudulent on their part. But admitting that the circumstances of the false statement of the consideration in the niortgage, and the claim in the answer that ii was then "in full force, "are suspicions, and not satisfactorily explained by the mortgagees, still we think it a case within the rule laid down in Boyi v. Suydam, 1 John, Ch. 478, in which it was held by Chan- cellor Kent that — �"When a deed is sought to be set aside as voluntary and fraudulent against creditors, and there is not sufficient evidence of fraud to induce the court to avoid it absolutely, but there are suspicions circumstances as to the adequacy of the consideration and faimess of the transaction, the court will not set aside the conveyance altogether, but permit it to stand as a security for the sum actually paid." See Bump on T. G. 288, ��� �