Gilleland v. Failing

By the Court, Beardsley, Ch. J. It is not material to inquire in this cáse, how far, or in what respect, if at all, the old law of champerty and maintenance was abrogated or modified by the revised statutes; (Mott v. Small, 20 Wend. 212; S. C. 22 id. 403;) for if no change whatever was thus made, it would not follow' that' the power of attorney from the plaintiff’s testatrix to the' defendant, was illegal and void, as was held at the circuit. The defendant was her son-in-law, and his wife might become entitled to the land by descent from her mother; ii was, therefore, not illegal" for him to carry on suits in her name, at his own expense, for the recovery of such land, either with or without an agreement that he should be benefited by the recovery. This was so held by the court of errors, in the case of Thalhimer v. Brinckerhoff, (3 Cowen, 623;) and the principle must be regarded as'iiicontestable. (Campbell v. Jones, 4 Wend. 306.) So far as respects the' mortgage given to the defendant by the testatrix of the plaintiff, he stood in her stead, and might [313] set up any matter to invalidate it which would be admissible in her favor if she were living- and' plaintiff in the suit. The common law would' not permit a mortgagor, or the-maker of any other sealed instrument, to impeach it by showing that it was made without an adequate consideration. But this rule has been modified by statute, for where a sealed obligation is directly in question, as the foundation of an action or a set-off, the obligor may avoid it by showing-the want- of a sufficient-' consideration. (2 R. S. 406, §§ 77, 78.) This principle is inapplicable to the' present case, the mortgage not being directly in issue as the foundation of a recovery or of a defence by way of set-off. If the mortgage was in any way material in this case it was because the money received by the defendant, and for which the action was brought, had been paid to him in satisfaction of the mortgage debt due from the-plaintiff’s-testatrix, So'that, if the plaintiff could show that-there was no such debt, the inference would'follow that the-money was received for the use' and benefit of the testatrix. But as the common law will not permit a mortgage to be thus invalidated, and" the statute is inapplicable to such a case as this, no inquiry as to the consideration of this mortgage was admissible. The testatrix was not shown to owe so much- as a dollar at her decease, so that the rights of creditors, whatever they may be in a case circumstanced like this, cannot be drawn in question. The money for which this action was brought, was received by the defendant as payment on the mortgage given to him by the plaintiff’s testatrix, or as a direct gift from her. There is no room on the evidence, for even a pretence that, in point of fact, the defendant received the money as belonging to the testatrix and to be paid over to her. By the original agreement, as shown by the power of attorney, the defendant was to carry on suits for the recovery of the land claimed, for his own “ special benefitand when the compromise of these suits was made, the testatrix, who was a party to that compromise, expressly declared by the quit-claim deed then executed by her, that the amount agreed to be paid for the land, was to be re [314] ceived by the defendant • in the present suit, in satisfaction of the mortgage she had previously given to him. The same thing was affirmed in the release or confirmation, executed by the testatrix under seal, at the time of making said compromise ; the words used in that instrument being, that said Failing is to retain the avails received by him on such settlement, and to be received, in payment and satisfaction of his demands and claims against me on the mortgage given by me to him some years ago”—“ and any others he may have against me, and to have said mortgage cancelled.” There is much other evidence to the same effect; but, if the testatrix executed these instruments without fraud, the evidence was quite conclusive that both the testatrix and the defendant intended the twenty-one hundred dollars should be absolutely his own. He received the money, in form at least, as payment on the mortgage, and if the mortgage is to be held valid, the payment was equally so. But if the mortgage could be set aside as void for the want of consideration, or on any other ground, it would not follow, in every such case, that the money received upon it could be recovered back. The general rule is otherwise, for a payment voluntarily made, can in no case, except under peculiar circumstances, be recalled. New trial granted.