
    Between Moses Ward and wife, appellants, and William O. Price, respondent.
    A bond and mortgage sold by the assignee of a bankrupt mortgagee, and afterwards sold and transferred by the purchaser at such sale to a third person, in trust for the mortgagor, cannot be enforced against a prior grantee of the mortgagor holding under a deed with covenants of general warranty and against encumbrances.
    In such case the proof of the trust must be satisfactory.
    
      J. P. Bradley, for appellants.
    
      A. S. Pennington, for respondents.
   The opinion of the court was delivered by

Green, O. J.

The bill was filed by Price in the court below, to foreclose a mortgage given by William T. In-graham to Elisha Whittaker, on the 23d of May, 1836, to secure the payment of §>172.50. In 1843, Whittaker, the mortgagee, became bankrupt, the bond and mortgage were sold by his assignee, and subsequently passed by assignment to the complainant. Ingraham, the mortgagor, sold and conveyed the mortgaged premises by deed, with covenant of general warranty and against encumbrances.

The sole defence is, that the bond and mortgage were in reality sold to Ingraham, the mortgagor, and that they are held by Price, the complainant, in trust for Ms benefit. If the fact be so, the complainant cannot recover. The defence turns upon the proof of that fact. The bur-then of proof is on the defendant.

The evidence does not satisfactorily prove the defence. The circumstance that the mortgage was purchased by a brother of the mortgagor in his name, and that it was assigned to his partner, renders it probable that the purchase was made for his benefit. But there is no evidence that the brother was ever authorized to make the purchase for the mortgagor, or that the mortgagor were advanced one dollar of the purchase money. On the contrary, the evidence is express that, at the time of the purchase, it was expressly stated that the mortgagor was unable to raise the money, and that the money would be paid by the complainant. The mortgagor himself testifies that the money was paid by the complainant for his own benefit, and that it has never been repaid.

The defence is not sustained, and the decree must be affirmed.

The decree of tfie court below was affirmed.  