Hutchison v. Gill

The judgment of the Supreme Court was entered, Per Curiam. When a mortgagor, at the same time that he executes a mortgage, delivers to the mortgagee a writing, certifying that he has no defence or defalcation, it is in effect an agreement that the mortgagee shall negotiate the mortgage. It is an acknowledgment that he has received full consideration. It is indeed most usual to execute such writings when no consideration has been received, and the sole object of the mortgage is to raise money by the sale of it. It would be in the highest degree inequitable to allow the mortgagor to set up that there was fraud in obtaining the mortgage, or in a misappropriation by the mortgagee of the money raised by the sale. It is unnecessary to say what would be the effect of actual fraud in procuring the “ no defence” paper. In this case there was no evidence of such fraud. Judgment affirmed.