
    AARON LONGSTREET v. CHARLES T. SHIPMAN AND WIFE ET AL.
    A mortgage is given by A, living in this state, to B, of New York, on lands in this state, to secure the payment of a bond. The mortgagor, afterwards, for purposes of his own, exeeui.es, and causes to be recorded in the proper office of this state, a deed of the premises to the mortgagee. The mortgagee, without having assented to the deed, assigns the bond and mortgage, with all his other property, for the benefit of all his creditors. Afterwards, a creditor of the mortgagee attaches the land. The attachment will not hold the property against the mortgage.
    On the 5th of March, 1839, Charles T. Shipman and wife executed a mortgage to the complainant, on real estate in Newark. On the 28th of September, 1840, they executed another mortgage on the same premises to the defendant Thomas Brooks. Brooks lived in the city of New York. In February, 1841, a deed of the premises from Shipman and wife to Brooks, was recorded in the clerk’s office of Essex county. On the 29th of March, 1842, Brooks assigned all his estate, real and personal, to the defendants Theophilus Pierce and Jonathan Thorn, of the city of New York, for the benefit of. his creditors. The bond and mortgage from Shipman and wife to Brooks, are mentioned in the schedule accompanying the assignment. In December, 1842, Brooks was, in New York, discharged under the bankrupt law, and the defendant Coventry H. Waddell was appointed his assignee in bankruptcy. In January, 1843, Shipman was, in New Jersey, discharged as a bankrupt, and the defendant Charles T. Gray was appointed his assignee. In the vacation preceding the November Term, 1842, of the Supreme Court, an attachment was issued out of that court, against the goods, &c., and lands and tenements of Brooks, at the suit of the defendants Smull and Gilman, by virtue of which the premises described in the mortgages were attached as the property of Brooks, subject to the mortgage to the complainant.
    The bill is filed by Longstreet, to foreclose his mortgage. It states the foregoing facts, and makes Shipman and his wife; Gray, his assignee in bankruptcy ; Brooks, Pierce and Thorn, the assignees of Brooks in trust for his creditors; Waddell, his assignee in bankruptcy; Smull and Gilman, the attaching creditors, and certain judgment creditors of Shipman, parties defendants.
    The controversy is between the defendants Smull and Gil-man, the attaching creditors of Brooks, and the defendants Pierce and Thorn, the assignees of Brooks in trust for all his creditors. There is no difficulty as to the'mortgage of the complainant.
    The cause was heard on the pleadings and proofs.
    
      A. Whitehead, for the defendants Pierce and Thorn.
    
      Gifford, for the defendants Smull and Gilman, the attaching creditors, and for the complainant.
   The Chancellor.

The attaching creditors insist that by the deed from Shipman and wife, the mortgagors, to Brooks, the second mortgagee, Brooks became the owner of the property, subject only to the Longstreet mortgage; and that they have become entitled to this interest of Brooks, under the attachment. The defendants Pierce and Thorn insist that the deed from Shipman and wife to Brooks, was made without the knowledge or consent of Brooks, and was never accepted by him; and that, therefore, the bond and mortgage to Brooks remained unextinguished, and were valid securities when assigned to them, and are still valid securities in their hands.

The opposing defendants admit that the bond and mortgage from Shipman and wife to Brooks, were bona fide; and, as between them, the question presented is whether, under the testimony in the cause, the proceeds of this property, after paying the first mortgage, shall go to the attaching creditors, only, of Brooks, or to Pierce and Thorn, in trust for all his creditors, equally.

If the deed from Shipman and wife to Brooks was a business transaction between them; if Brooks really bought the property, and agreed to take it in payment of the bond which the mortgage on it was given to secure — then the bond and mortgage were extinguished, and Brooks became the owner of the property, subject to the first mortgage, and this interest would be bound by the attachment, and the attaching creditors would take the proceeds of the property, subject to complainants mortgage. But, under the evidence in the cause, I am satisfied that the deed from Shipman to Brooks was not made on a sale of the property. The making of that deed, and causing it to be recorded, was an arrangement by Shipman, for purposes of his own. And if Brooks never assented to it, it would be no extinguishment of his bond and mortgage — he might assigii his bond and mortgage, notwithstanding. He swears he never did assent to it. So far, then, as this property may be worth more than the first mortgage, and what is due, if anything, on the second mortgage, the creditors of Shipman are entitled to the benefit of it.

But if the deed from Shipman and wife to Brooks should be considered as extinguishing his bond and mortgage, so that they could not afterwards be assigned, and as vesting the title of these premises in Brooks, yet the attaching creditors arc in no better situation, for the assignment by Brooks, to Pierce and Thorn, was made in March, 1812, previous to the issuing of the attachment, and was an assignment of all his estate, real and personal.

In reference, therefore, to the matter in controversy between the particular creditors of Brooks, who have' joined in the attachment issued in New Jersey, and Brooks’ assignees in trust for all his creditors, the investigation of the case conducts us to a result which, even if it were at all doubtful, would still yield the satisfaction of being agreeable to the doctrine of this court, that among creditors, equality is equity. The attaching creditors are still left, in reference to all that can be obtained from these premises for the benefit of Brooks’ creditors, on an equal footing with all the other creditors of Brooks.

It is the opinion of the court, therefore, that the said attachment is no lien on the mortgaged premises. A reference will be ordered, to ascertain the amount due the complainant on his mortgage, and the amount due on the mortgage given by Ship-man and wife to Brooks, and by him assigned to Pierce and Thorn; and a sale will be decreed, and so much of the proceeds as will be necessary, will be applied to the payment of the sums found due on the mortgages, and the residue will be directed to be paid to the assignee in bankruptcy of Charles T. Shipman.

Order accordingly.  