
    John Thompson, by his Guardian, Resp’t, v. Robert V. Noble et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1889.)
    
    1. Assignment—Bona vide pubchaser.
    A judgment in foreclosure was recovered by S. against T. The mother of T. employed N. to raise money and pay this. N. paid S., but took an assignment of the judgment to himself and afterwards sold it to J., who was a bona fide purchaser, for value without notice. Held, that J. hy the purchase acquired no rights as against the owner of the fee.
    
      2. Same—Estoppel.
    The mother of T. has done no act on which J. relied; hence she is not estopped to attack the validity of the assignment to ET.
    Appeal from judgment in favor of plaintiff adjudging that a certain judgment of foreclosure and sale had been paid and ordering that the same be discharged and satisfied of record.
    
      L. F. Longley, for app’lts ; Willard Peck, for resp’t.
   Learned, P. J.

This action was brought to declare satisfied a certain judgment of foreclosure rendered in February, 1879, in favor of one Smith against one William Thompson, since deceased, the father of the infant plaintiff. The plaintiff’s claim is that Mrs. Jane Thompson, mother of William, caused the amount of the judgment to be paid to Smith through Noble, one of the defendants, May 24, 1879.

The defendants claim that Noble paid the judgment from his own money. Noble took an assignment to himself, and February 24, 1882, assigned the judgment to defendant Jones.

The learned court found that Mrs. Thompson put into Noble’s hand a certain note to be used for satisfying the judgment; that Noble obtained for said note from the makers a mortgage, which mortgage Noble negotiated; that out of the moneys thus received Noble paid to Smith the amount of the judgment, and that in so doing he acted for Mrs. Thompson,

The first question raised by appellant is one of fact, viz.: whether Noble was acting as Mrs. Thompson’s agent and paid Smith with moneys supplied by her for that purpose. The findings of the learned court on this question of fact should have great weight with us, even if we felt any doubt upon the examination of the evidence. But we think the findings are sustained.

It follows from this that though there was an assignment executed by Smith to Noble, yet in Noble’s hands the judgment would not be good. He took it in violation of his duty as agent and could not enforce the judgment.

Jones is admitted to be a bona fide purchaser for value without notice. And the remaining question is whether he acquired any rights as against the owner of the mortgaged land.

The general rule is that, as to non-negotiable securities, the purchaser takes only such title as the seller had. Bush v. Lathrop, 22 N. Y., 549. An exception is made where the true owner has by assignment conveyed the apparent absolute ownership. In such case a purchaser bona fide from such apparent owner holds a good title against the real owner, because the real owner is es-topped from denying the absolute ownership of the person to whom he has assigned. Fairbanks v. Sargent, 104 N. Y., 117; 5 N. Y. State Rep., 531. To apply that rule to this case, Smith could not against Jones assert that the assignment to Noble was not in fact absolute. But Mrs. Thompson has made no assignment which estops her. She has done no act on which Jones relied in making his purchase. If one of two innocent persons,- Jones and Mrs-Thompson, must be the loser, there is no reason why the loss should fall on her. If she had recognized or consented to the making of the assignment to Noble, then she might have been es-topped from denying its validity. But it is found that she knew nothing about it.

If it should be urged that Noble was her agent and therefore the taking of the assignment to him was her act, the reply is that Jones did not rely upon this as being her act. He relied on no act of Mrs. Thompson which could estop her from asserting that she had paid the mortgage. Moore v. Metropolitan Nat'l Bank, 55 N. Y., 41.

The question here cannot be determined by reference to the rule as to fraudulent purchasers of real estate or of chattels. Simpson v. Del. Hoyo, 94 N. Y., 189, cited by appellant. That was the case of a mortgage given by one who held the legal title to the land. Fraud in procuring .title to the land could not be shown against a bona fide holder of the mortgage. But the court said that the rule as-' to the purchase of non-negotiable securities was not applicable.

We think that the present case does not come within the exception above mentioned to the general rule as to non-negotiable securities, which is too familiar to require the citation of authorities. The mortgagor, or his mother on his behalf, paid the mortgage, and it should be adjudged satisfied even against the defendant Jones.

Judgment affirmed, with costs.

Landon and Ingalls, JJ., concur.  