
    Mary F. French, App’lt, v. James M. Stevenson et al., Adm’rs, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    Assignment — Judgments.
    Defendants, as administrators of an estate, agreed with a mortgage creditor of the decedent that they would not bid on the foreclosure sale of decedent’s land, on the condition that the mortgagee would satisfy certain judgments which he held against the estate. They carried out this agreement, and the mortgagee bought in the property for less than his claim, although it was worth more than the liens, including the judgments. The mortgagee had assigned the judgments to his wife. Held, that the conclusion of the referee that as no consideration was shown the wife could not enforce them against the estate, was correct, as she occupied no better position as against the defendant than her assignor would..
    Appeal by plaintiff from a judgment disallowing her claim, against the estate of William Ross, deceased.
    
      W. H. Kenyon, for app’lt; W. K. & F. F. Hughitt, for resp’ts
   Corlett, J.

On the 1st day of April, 1870, William Ross purchased a farm of two hundred and fourteen acres in the town of Montezuma, Cayuga county, for the sum of $20,280. He died in the month of September, 1887. Letters of administration were granted to the defendants, who duly qualified. At the time of the decease of Ross the farm was incumbered by mortgages and judgments to the amount of about $10,000. One of the judgments was recovered by Nelson Beardsley in the supreme court on the 29th day of January, 1887, for $298.62 damages and $22.32 costs., Another was recovered by Nathan Kingsley in the same court on the 23rd day of June, 1887, for $1,395.90 damages and $21.36 costs. Another was recovered by D. M. Osborne & Co. before a justice of the peace on the 22d of August, 1887, for $135.22 damages and costs, a transcript of which was filed in the Cayuga county clerk’s office. . .

On the ,6th day of January, 1888, George G. French became the owner of the judgments recovered by Nelson Beardsley and D. M. Osborne & Co., which are the claims involved on this appeal. ■On the 30th day of March, 1887, Ross executed a mortgage on the farm to Nelson Beardsley to secure the payment of $2,000, which was assigned to Alice B. Ross. This was a junior mortgage, to enforce which she commenced a statutory foreclosure, in October, 1887. While the foreclosure was pending, and on the •6th day of January, 1888, the assignee assigned the mortgage to George G. French, for whose benefit the foreclosure was continued in the name of said Alice B. Ross. The time of sale was January 16, 1888. On that day the owner of the mortgage, George G. French, sent his son, Fred. E. French, to represent him on the sale, with full authority to act for him, and do all things respecting the •sale and other proceeedings incidental thereto.

It had been ascertained before the day of the sale that the per■sonal property of the deceased would be insufficient to pay his debts, including the judgments above mentioned. The defendants decided to bid on the foreclosure sale a sum sufficient to pay .all the liens upon the premises, including the judgments. On the day of sale, and prior thereto, one of the defendants, James M. Btevenson, informed Fred. E'. French of his intention to bid on .the sale the amount of the liens. Thereupon it was agreed between said Fred. E. French, representing his father, and the said Stevenson, representing the defendants, that if the said Steven-son would not bid upon the sale that the judgments against the deceased, William Ross, should be discharged, and should not be presented as claims against the estate. This agreement was carried out, and the premises were purchased by Fred. E. French for a sum less than the mortgage debt, and afterwards George G. French took the title under this foreclosure, and still owns the premises, which were worth the amount of all the incumbrances, .including the judgments. On the 7th day of January, 1888, the ••said George G. French assigned the judgments in controversy to his wife Mary E. French, the plaintiff. The said Stevenson, when he made the agreement with Fred., knew that George G. French was the owner of the judgments, but had no notice or knowledge of assignments to his wife, which were never recorded in the clerk’s, office, and no entry was made indicating any transfer. Stevenson believed at the time of making the agreement that said George still continued the owner of said judgments, and made it on that-assumption. Under such circumstances the plaintiff would be equitably estopped from enforcing her judgments against the defendants. Blair v. Wait, 69 N. Y., 113.

The agreement on the part of the defendants was fairly and honestly made for the purpose of procuring a satisfaction of the judgments out of the real estate, and to release-the personal property of the deceased for the payment of his debts outside the judgments.

Notwithstanding these facts, Mary E. French presented the judgments in controversy as claims against the estate of the deceased. They were disputed and rejected by the defendants. The surrogate appointed James Lyon, Esq., referee to hear and determine the controversy. The referee found the above facts on sufficient evidence, and as conclusions of law determined that the-claim was not a just one, and that the plaintiff was not entitled to recover. At a special term in September, 1889, the report was-confirmed and- judgment directed against the plaintiff. This appeal was taken from the judgment entered upon that direction. No case was prepared or motion made for a new trial.

The evidence fails to show that any consideration was paid for the judgments by the plaintiff. She occupied no better position, as against the defendant than her assignor would, Hill v. Hoole, 116 N. Y., 299 ; 26 N. Y. State Rep., 657.

No questions are presented for review on this appeal except, those before the special term, based upon the referee’s report, findings and the plaintiff’s exceptions thereto. The evidence and proceedings were never passed upon at special term, and are not before this court. Third Avenue R. R. Co. v. Ebling et al., 100 N. Y., 98; Matthews v. Mayberg, 63 id., 656.

The sole question here is whether upon the referee’s findings, his legal conclusions were correct. There does not appear to be-any room for controversy on this question. -The real estate was, worth more than the amount of the liens,-including the judgments. The defendants represented the creditors and the estate. . The duty devolved upon them of preventing its sacrifice and protecting it for the benefit of creditors and those entitled to the surplus. They could do it only by bidding at this foreclosure sale the value of the property. The agreement, therefore, was a proper and legitimate one as it enabled them to secure the results which a discharge of their obligations required. The son and agent of French had full authority to act; his principal obtained the benefit of the proceeds. Mayer v. Deane, 115 N. Y., 556; 26 N. Y. State Rep., 375; Bennett v. Judson, 21 N. Y., 238.

His wife occupied no better position than himself. The law is-not chargeable with the gross injustice which a reversal of this judgment would involve.

It is a familiar rule that neither the statute of frauds or any other statute or principle of law can be invoked to aid in thieperpetration of a fraud. Ryan v. Dox, 34 N. Y. 307; Dodge v. Wellman, 1 Abb. Ct. App. Dec., 512.

The appellant is in no position to urge that the defendants could not enforce the contract. Equity will not allow her to assume such a position. The only ground upon which she has a colorable standing in court is the violation of an agreement by those under whom she claims, the honest performance of which, would have extinguished her judgments. But as already shown, the defendants were not guilty of any violation of statute or principle of law in making the agreement.

The proceedings before the referee disclosed by the case, including the evidence, have been carefully examined, and if properly before this court for review show no errors which would warrant a reversal. The conclusions of the referee and the decision of the special term were correct, and the judgment should be affirmed

Dwight, P. J., and Macomber, J., concur.  