Waterall v. Strayer

HamiltoN, Judge, delivered tbe following opinion: While tbe dates are not fully presented in tbe report of tbe master, it seems that petitioner Christiansen made a mortgage of certain real property to Strayer, that Strayer assigned tbe mortgage to tbe American Colonial Bank, and that afterwards Christiansen paid tbe debt to Strayer by turning over grape fruit trees of equivalent value. It has heretofore been determined by tbe court that tbe bank could not hold tbe mortgage for more than tbe $1,000 for which it was assigned, tbe claim under a general clause in notes of Strayer not binding [211] Christiansen. Christiansen’s petition admits the liability of the property to the- $1,000 for which' the mortgage was transferred to the bank, and offers to pay this amount. There is therefore no question as between Christiansen and the bank. The master reports favorably to the petition, and the receiver hélein excepts on the ground that § 1195 of the Civil Code of Porto Pico does not permit a transaction not recorded to affect holders under a public instrument which is recorded. The case of Longpré v. Wolff, 23 P. R. R. 27 (same case, on appeal in Rucábado v. Longpré, 152 C. C. A. 279, 239 Fed. 291), however, decides that this section is’repealed by § 102 of the Law of Evidence of 1905, which provides for presumptions of fairness of transactions. The claim of the American Colonial Bank for $1,000 is not affected, and a decree will be entered directing the cancelation of the mortgage in question after payment hy petitioner to said bank of whatever is due on the transfer for that amount. It is so ordered.