
    Sylvester J. Ingalls, Resp't, v. Prin Ingersoll, Impl'd, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Foreclosure—Evidence.
    On the trial of an action brought to foreclose a mortgage, where the defense is want of consideration and wrongful diversion, and the mortgagee’s testimony is evasive and his title and right to assign strongly impeached, it is proper to ask him on cross-examination whether he had ever taken a writing from the assignee of the mortgage in reference to it, as bearing on the bona fdes of the assignment.
    
      2. Same.
    So also as to a question if he told the assignee, at the time he let him have the mortgage, that he must not disturb the mortgagor.
    Appeal by the defendant from a judgment entered in Allegany county, on the report of a referee.
    
      G. W. Harding, for app’lt; J. G. Leggett, for resp’t.
   Dwight, P. J.

The action was for the foreclosure of a mortgage made by the defendant Mrs. Ingersoll to one Bussell and assigned to the plaintiff. The defense was want of consideration; the defendant averring that she made the mortgage at the request of the mortgagee, without any consideration, to be used by him at a bank as collateral security for a loan of $200; but that the mortgagee wrongfully diverted it from that use and sold it to one John W. Ingalls, who sold it to the plaintiff.

The issue thus joined presented the only question litigated on the trial, and that was purely a question of fact.

On that question the defendant made direct and positive evidence in support of the averments of her answer by her own testimony and that of her brother, who testified that he was present when the application was made to her for the mortgage. On the part of the plaintiff the only direct evidence was by the testimony of Bussell, the mortgagee, and that testimony, we feel bound to say, was of an extremely unsatisfactory character.'

On his direct examination he testified to no fact whatever except that Mrs. Ingersoll received $400, in money, for the mortgage, which was paid to her or as she requested. All the rest of his testimony, on direct examination, consisted of specific denials of matters testified to by the defendant and her brother. On his cross-examination counsel for the defendant seems to have made the effort to obtain from this witness his version of the transaction, but wholly without success. Nearly all his answers seem to have been evasive. He professed himself unable to tell where the defendant applied to hiifl for the loan, or what she said in making the application; where the mortgage was executed, or by whom it was delivered to him; where or when he paid her any part of the consideration, or where he got any part of the money which he paid. He testified that he did not know who wrote the mortgage, but that he did not; nor who wrote the acknowledgment; nor whether both were written by the same person ; he afterwards testified that he wrote the acknowledgment ; but he does not know where he wrote it. He testified : “ I do not know whether Mrs. Ingersoll sold the mortgage or not; I think I paid the consideration to her, orto the person to whom she sold the mortgage.” The witness was a lawyer, and eighty-three years of age; but these facts do not seem to account for the incoherent, unintelligent and apparently evasive character of his testimony. The referee can hardly have given much weight to his categorical denials of the evidence on the part of the defendant, when he was unable or unwilling to give any account whatever of the transaction as it actually occurred.

The only other evidence on the part of the plaintiff was derived from an admission of her answer that she had made three small payments of interest on the mortgage, and from two letters written by her, when temporarily in Kansas, to John W. Ingalls, who then held the mortgage, and who had written her demanding payment of the interest, and threatening foreclosure if it was npt paid. In the first of the letters she expresses great surprise that the mortgage was in his hands; but one of them enclosed a draft for sixteen dollars, and both contain promises of further payments when she returns home. She testifies that she made both payments and promises in the belief that by no other means could she prevent the sale of her property on foreclosure.

It was, probably, the evidence of payment and promises to pay which induced the report in favor of the plaintiff, and we are not prepared to say that the findings were unwarranted by the evidence as it stood. But we are of the opinion that the referee erred in his rulings upon one or two questions of evidence which arose upon the trial.

On the cross-examination of the witness, Bussell, who was a party to the transaction which was the subject of inquiry, and whose examination thus far had been so unproductive of facts, he was asked whether he had ever taken a writing from John W. In-galls in reference to this mortgage. The question was objected to as not a proper part of cross-examination and the objection was sustained. We think it should have been overruled. Ingalls was Bussell’s assignee of the mortgage. Bussell’s title to the mortgage and his right to assign it had been strongly impeached. The court should have availed itself of every means of testing the honesty of this assignment.. If Ingalls gave back to his assignor some paper in the nature of a defeasance! as providing against an attempt to enforce the mortgage against the mortgagor, or which in any other way bore upon the Iona fides of the assignment, the defendant was entitled to elicit the fact, if possible, from the witness. In view of the evasive character of his testimony already given, a very wide scope should have been allowed to his further cross-examination. Another question pointing in the same direction was put to the witness and was disallowed by the court on the same ground as the last. It was: “ Did you tell John W. In-galls at the time you let him have this mortgage, that he must not disturb Mrs. Ingersoll ?” The question was an important one, and if answered in the affirmative would, no doubt, have been followed by questions which would have gone far to demonstrate the truth of the case. We think both of the questions discussed were properly part of the cross-examination of this witness; that the objection thereto was improperly sustained.' The case was, to say the • least, a doubtful one on the question of fact, and one from the elucidation of which no available light should have been excluded.

For the erroneous rulings mentioned the judgment should be reversed and a new trial granted.

So ordered, with costs to abide the final award of costs.

Lewis, Macomber and Haight, JJ., concur.  