Thurman v. Stoddard & Co.

BBICKELL, C. J. Errors are assigned only by the appellant William D. Thurman; and of consequence, it is only necessary to consider the correctness of the decree so far as it may affect him. The question does not seem to us, as is argued by his counsel, whether he has estopped himself from asserting the equitable lien, which, as a vendor, he may have on parts of the mortgaged premises, by his attestation of the mortgage, without disclosing it; but rather, whether the [338] mortgagee is not a bona fide purchaser without notice, having the legal estate, against which the equitable lien can not prevail. The mortgage was given as security for a pre-existing debt; and if the time of payment of the debt had not been extended, nor any other new consideration had intervened, the mortgagee would stand simply in the place of the mortgagor, having no other right or equity. But, in consideration of the mortgage, forbearing the payment of his debt, extending the day of payment, he changes his condition and relation, and is entitled to protection as a bona 'fide purchaser. There is no pretense that he had any notice of the equity of Thurman as a vendor, and it can not be asserted against him. — 1 Jones on Mortgages, § 459. The decree is affirmed.