
    Luetchford v. Lord et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October 23, 1890.)
    1. Mortgages—Consideration—Gambling Debt.
    The answer, in an action to foreclose a mortgage, alleged that the mortgage was given in part for money lost at cards by defendant’s husband. It appeared that the mortgagor had children who would have been entitled to the mortgaged premises if she had died immediately after executing the mortgage. Held, that the mortgage inured for the sole benefit of such children under 1 Rev. St. K. T. p. 663, §§ 16,17, declaring that mortgages on land executed in consideration of money won at betting or gaming shall be void as to the mortgagees and shall inure for the sole benefit of such person as would have been entitled to the mortgaged property if the mortgagor had died immediately upon the execution of the mortgage.
    2. Witness—Competency.
    Defendant’s husband was a competent witness to prove the defense, although the mortgagee had died before suit.
    Appeal from special term, Monroe county.
    Action by Mary E. Luetchford against Elizabeth Lord, impleaded with her husband, George D. Lord. There was judgment for plaintiff and defendant appeals.
    Argued before Dwight, P. J., and Macomber and Corlett, JJ.
    
      William N. Cogswell, for appellant. Horace McGuire, for respondent.
   Macomber, J.

The mortgage, for the foreclosure of which this action is brought, was executed, together with the bond to which it is collateral, on the 6th day of September, 1877, by the defendant Elizabeth Lord, the owner of the mortgaged premises, and her husband, George D. Lord, by which they promised to pay one William Allen, the mortgagee, the sum of $5,500 on the 1st day of January, 1880, with interest, payable semi-annually. William Allen died in the month of September, 1888, leaving a last will and testament, and the executors thereof assigned such bond and mortgage to the plaintiff. The only answer interposed is that of the defendant Elizabeth Lord, in which it is alleged that, at the time of making the bond and mortgage, the defendant George D. Lord had lost to William Allen, the mortgagee, the sum of $1,100 at a game of chance called “poker,” and that the consideration of the bond and mortgage to that amount was for the payment, or securing payment, to said William Allen, of such moneys so lost in gaming. The defendant George D. Lord, who made default in pleading and did not appear in the action, was called as a witness by his wife to prove this allegation of the answer. Objection was made thereto upon the ground that the witness was incompetent to testify to any communication or transaction between him and William Allen, deceased, under the provisions of section 829 of the Code of Civil Procedure. The objection was sustained by the court; the offer of the defendant was excluded, to which ruling the defendant duly excepted. It appeared in evidence, and was so found by the trial judge, that, at the time ■of the execution of the bond and mortgage, Anna Eliza Lord, George Jarvis Lord, Jessie Lord, and Durell Lord were the children of the said Elizabeth Lord and George D. Lord, and that they would have been entitled to the real estate ■covered by the mortgage had Elizabeth Lord died immediately upon the execution of that instrument, and that all of such children are now living. The reason stated by the learned trial judge for excluding the evidence so offered, is that the witness is interested in the event of the action, and hence rendered incompetent to testify to any transaction or communication between him and the deceased mortgagee. The cases cited by him are those which are applicable only to questions where, clearly, the proffered evidence would inure to the pecuniary benefit of the witness.. A present reference to them would avail nothing, for we deem them inapplicable to the facts existing in this case. Tet, except for the statute pleaded in the answer, these authorities would be controlling, and a safe guide for our decision. But the appeal presents a question outside of such authorities, arising upon an ancient statute to which the trial court has not adverted. 2To case has arisen in this state, or elsewhere, of which we are aware, which is an authority or guide in the solution thereof.

By section 16 of the Revised Statutes, pt. 1, p. 663, all things in action, judgments, mortgages, conveyances, and every other security whatever, given or executed by any person, where the whole 'or any part of the consideration of the same is for any money or other valuable thing won by playing at any game whatever, or won by betting on the hands or sides of such as do play at any game, or where the same shall be made for the repaying of any money knowingly loaned or advanced for the purpose of .such betting or gaming aforesaid, etc., are rendered utterly void,“except where such securities, conveyances, or mortgages shall affect any real estate, when the same shall be void as to the grantee therein, so far only as hereinafter declared.” Section 17 is as follows: “When any securities, mortgages, or other conveyances, executed for the whole or part of any consideration specified in the preceding section, shall affect any real estate, they shall inure for the sole benefit of such person as would be entitled to the said real estate if the grantor or the person incumbering the same had died immediately upon the execution of such instrument, and shall be deemed to be taken and held to and for the use of the person who would be so entitled. All grants, covenants, and conveyances for preventing such real estate from coming to, or devolving upon, the person hereby intended to enjoy the same as aforesaid, or in any way incumbering or charging the same, so as to prevent such person from enjoying the same fully and entirely, shall be deemed fraudulent and void. ” By the clause quoted from the sixteenth section, the mortgage in question was made void as to William Allen so far only as is expressed in the seventeenth section; that is to say, if we understand correctly its meaning, this security was not so absolutely void, even by the terms of the sixteenth section, as to render it inoperative for any purpose whatever; but it was rendered void only so far as to deprive the mortgagee of all rights thereunder, but not void to the extent of restoring to the mortgagors the property which they had conveyed in violation of the statute. The seventeenth section saves the security for one purpose only, and that is for the benefit of such persons as would be entitled to the real estate if the grantors or persons incumbering the same had died immediately upon the execution of the mortgage. ■ As applicable to this case, the mortgage was not available to the mortgagee; and yet the land covered by it was not restored to the mortgagors freed from such incumbrance. On the contrary, the statute declares that the same shall be deemed taken and held for the use and purpose of the four children of the mortgagors. The policy of the act, manifestly, was not only to deprive the mortgagee of any right to the security, but, at the same time, to put it out of the power of the mortgagors to make any other like deposition of this property to the,impoverishment of their heirs at law. As was said in Ruckman v. Pitcher, 1 N. Y. 396: “The question is not upon the abstract rights and obligations of parties left free to contract, consent, and act for themsel'ves', and bound by their admissions and acts. * * * The legislature has prescribed the rules which are to govern the case, and our inquiry must be, what the rules are which the statute intends to apply. * * * The evident intention of the legislature was to discourage and repress gaming in all its forms, including bets and every species of wager contracts of hazard, as a great public mischief, calling for effective measures of prevention and remedy.” In Storey v. Brennan, 15 N. Y. 527, the court says: “The object of the statute to prevent betting and gaming was the pro-1 tection of the public morals. The act being enacted for the public good, it shall be so construed as to attain, as far as possible, the end proposed by suppressing the mischief against which it was directed.” This statute works a transfer of the title to these securities from the mortgagee to the four children of Mrs.' Lord. If the bond and mortgage had been assigned by Allen’s executors to the children of Mrs. Lord, the plaintiff could not, under the answer interposed, maintain this action. The absolute transfer thereof which the statute makes to them is not less effective as a defense. Some doubt was, at first, entertained by us, whether it would not be necessary to bring the children into this action, in order to made an effective application of the statute. But on the whole we think that, whatever future action may betaken in their behalf, and whatever affirmative belief may therein be awarded to them, yet the answer is good as a simple defense, in analogy to the plea that the plaintiff was not the owner and holder of the securities, but that certain persons, naming them, were. If Mrs. Lord had died before this action had been brought, these children would be necessary, and the principal, parties defendant. They clearly would have the right to plead this statute, and, under the proof offered, to demand a judgment that their title should be entirely freed from the alleged indebtedness to Allen or his transferee.

But it is argued by counsel for respondent that, if the evidence were admitted, and if, under it, the bond and mortgage were declared to be null and void, the witness would have a right of curtesy initiate in the real estate, and hence he is interested in the event of this action. This position, however, ignores the very substance and meaning of the statute against gaming; for if that act can be read for any efficient purpose, it is that its object is, from beginning to end, to deprive the mortgagors absolutely of all interest in the property, and to transfer it in its entirety to the persons presumed in law to be dependent for support upon the mortgagors. The testimony, therefore, so excluded, while it would defeat a recovery by this plaintiff, would not obliterate the bond and mortgage, but would adjudge them to belong to third persons. Whether they should be held by one person or another, is a question in which the witness has no pecuniary interest. Neither he nor his wife can recall for the benefit of either their unlawful act in executing these instruments. The securities remain as binding obligations, but for the benefit not of the mortgagee or his transferee, but of the persons named in the statute against gaming. If such is the true meaning of this act, then section 829 of the Code of Civil Procedure is no impediment in the way of a legal remedy for the legal wrong, and the witness is not disqualified from giving the evidence so offered. It follows, therefore, that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the final award of costs. All concur.  