
    James C. Caywood, as Guardian, etc., Resp’t, v. John K. Van Ness, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    Conversion—Second assignment of bond and mortgage.
    Where a mortgagee, after having transferred a bond and mortgage by a written assignment which remains unrecorded, again assigns them to a bona fide purchaser, who first puts his assignment on record, it amounts to a conversion of them.
    Appeal by defendant from a judgment entered on a verdict in favor of plaintiff.
    
      Robert Payne, for app’lt; Cook & Salmon, for resp’t.
   Barnard, P. J.

David Gr. Oaywood was appointed by the surrogate of Kings county, guardian of his two infant daughters, Ellen M. Oaywood and Mary M. Oaywood. He- died in February, 1890, and there was found among his papers an assignment of a bond and mortgage executed by the defendant to David Gr. Oaywood, guardian. No bond and mortgage was found. The plaintiff was properly appointed guardian of the children, and he brings this action to recover for a conversion ' of the bond and mortgage by the defendant. It was proven that in April, 1889, the defendant assigned the bond and mortgage to Reuben R. Finch, and that the previous assignment to the plaintiff’s predecessor as guardian was not recorded. These facts presumptively made out a cause of action. The written paper passed the title to the bond and mortgage and the subsequent sale of the securities by the defendant established a conversion of the same. Fulton v. Fulton, 48 Barb., 581.

The proof also supports the verdict of the jury. It was proven that when the defendant’s attention was called to the fact of the assignment being found among the deceased guardian’s papers, he suggested that, possibly, the guardian may have assigned the paper to raise money on. He had then again assigned th.e papers himself. The defendant in April, 1889, admitted that he had §2,000 of Oaywood’s money (the deceased guardian), and he spoke of it as a fund. This was about the very date of the second assignment made by Yan Ness. The proof shows that the fund belonging to the children was about the sum of §2,083.33. The defendant received over $3,000 on the second sale of the mortgage. The defense consisted of evidencejtending to show a settlement with the deceased guardian just before the second assignment. The credibility of the witnesses was a question for -the jury and their finding based upon a refusal to credit this settlement, is fully sustained by the whole body of the evidence.

The judgment should be affirmed, with costs:  