
    JAMES S. STURGES AND THOMAS T. STURGES v. JACOB ALYEA.
    1. A. and J. had given a joint bond, and A. had given a mortgage to secure it. Afterwards A., “ in consideration of certain agreements entered into between him and J.,” gave his bond to J., assuming the payment of the first bond, and indemnifying J. against it. After A. had paid half of the first bond, J. paid the other half of it, and instead of having it canceled, induced the obligee to assign it to S. and S., for the purpose of having the mortgage given by A. to secure it foreclosed in their names; and a foreclosure suit was brought in their names.
    2. The court ordered the bill to be dismissed.
    The bill states that on the 24th of August, 1840, Jacob Alyea and Thomas V. Johnson became indebted to Andrew B. Haxton, of New York, in $2564.26, and to secure the same, gave to Haxton their bond of that date, conditioned for the payment of the said sum in two years, with interest payable semi-annually ; and that Alyea, to secure the payment of the said money and interest, gave a mortgage of the same date, to Haxton, of certain real estate described in the bill, conditioned that if the said Alyea and Johnson should pay the said sum of money and interest according to the condition of the said bond, the mortgage should be void. That the mortgage was acknowledged on the 19th of October, 1840, and recorded the next day. That on the 22d of May, 1845, Haxton, in consideration of $1, to him paid by the complainants, by deed of assignment assigned the said bond and mortgage to the complainants. That the interest has been paid up to September 9th, 1844, and that $1000 of the principal has been paid, and that the residue of the said sum remains due.
    The bill is for the foreclosure of the mortgage and sale of the premises.
    Alyea alone is made defendant.
    Alyea, by his answer, admits that on the 24th of August, 1840, he and Johnson became jointly indebted to Haxton in the said sum, and gave their bond as stated in the bill, and admits that he gave the mortgage mentioned in the bill, and that the mortgage was given by him as well for the benefit of Johnson as for his benefit, and that it was given at the special instance and request of Johnson. He admits the payments mentioned in the bill, hut says that they were made by him solely, no part thereof having been paid or the money furnished by Johnson. He admits that Haxton may, in form, have executed an assignment of the bond and mortgage to the complainants, for the nominal consideration of $1, but he denies that it was made for proper and lawful purposes, and that the complainants were the lawful and bona fide purchasers of the mortgage for a valuable and good consideration; and says that the assignment was a fraudulent device of Johnson and the complainants, for the purpose of de - frauding him and depriving him of his legal and equitable rights.
    He says that at the time when the assignment bears date, Haxton received from Johnson, one of the joint obligors in the bond, the full amount of the balance due thereon, and that the same was paid off and liquidated and fully satisfied, and that if the bond and mortgage were assigned, they were not assigned to the complainants as bona fide purchasers, and not until after the whole amount of money due thereon had been paid, namely, the amount herein before stated as paid by the defendant, and the balance by Johnson, the other obligor. That he is informed and believes, that in the transfer of the said bond and mortgage, Haxton did not know the complainants, and that the assignment was procured and dictated by Johnson, and was made by Haxton on his receiving from Johnson, one of the obligors, the full amount, due thereon ; and that the money was received by Haxton in payment, and not as a consideration for the transfer to the complainants. That there is nothing due on the bond and mortgage — the same having been paid off — and that they ought, in equity, to be delivered up and canceled.
    Testimony was taken.
    
      L. C. Grover, for complainants.
    
      S. R. Grover, for defendant.
   The Chancellor.

The testimony shows that this bond was given by Alyea and Johnson, to Haxton, for a debt for which they were jointly liable, and of which, as between themselves, each was to pay one half, and that the mortgage given by Al-yea alone, on property belonging to him individually, was given to secure the said joint debt. The condition of the mortgage is, that if Alyea and Johnson shall pay to Haxton the sum mentioned in the said joint bond, and the interest thereon, the mortgage shall be void. Alyea, before the alleged assignment by Haxton to the complainants, had paid, of principal and interest on the joint bond, $1615.40. At the time of the alleged assignment, there remained due on the bond, for principal and interest, $1634.65. I have no doubt, from the testimony, that this balance, being about half the sum secured by the joint bond and the said mortgage, was in fact paid by Johnson, and that the procuring an assignment to be made by Haxton to the complainants was a device of Johnson. The case, then, thus far, is the same as if Johnson, on the payment of his half of the joint bond, had taken an assignment of the bond and mortgage to himself. If he had done so, it will not be claimed that the bond and mortgage would be valid securities in his hands for the amount so paid by him.

It seems that after the giving of the bond and mortgage, to wit, on the 28th of April, 1841, Alyea gave to Johnson á bond, in the penal sum of $5126.52, the condition of which recites the giving of the said joint bond by Alyea and Johnson to Haxton and the said mortgage by Alyea to secure the payment thereof; and provides that, in consideration of “certain agreements entered into between the said Thomas V. Johnson and the said Jacob Alyea,” and of one dollar paid by Johnson to Alyea, the said Alyea assumes the payment of the said bond, excepting six months interest thereon which Johnson is to pay; and that Al-yea exonerates Johnson from the payment of the said bond j and that if Alyea shall indemnify and save harmless the said Johnson, in manner aforesaid, this bond shall be void.

I presume that Johnson has derived from this bond of indemnity an argument in favor of his course in reference to the assignment procured by him of the bond and mortgage. But it cannot help him or the complainants in this suit. If he supposed he had any equity growing out of this part of the case, to have the mortgage considered a security in his favor for the sum he paid, lie should have presented it for the consideration of the court by a bill, which would have enabled the court to judge of it, and to decide whether such relief could be given to him. If such a bill could be entertained at all, it is obvious that the equip; involved in it might be overcome by circumstances which might be shown by Alyea in such a suit. To allow Johnson to succeed in the course he has taken would be to allow him to be tiie judge in his own cause, and to deprive Alyea of all opportunity to resist or overcome the supposed equity on which Johnson has acted.

Tfa® bill must be dismissed.

Order accordingly,  