
    William H. Arnoux, Respondent, v. Amy C. Phyfe and Others, Appellants, Impleaded with Sarah Campbell and Others.
    
      Power to executors to sell but not to mortgage — a mortgage executed by a grantee, to whom the property is conveyed simply that he may execute it, is an evasion of the will and invalid — estoppel.
    
    A judgment creditor of William Campbell, deceased .(who held a judgment which was entered after, upon a verdict directed before, the death of Campbell, whose executors were given by his will a discretionary power of sale, but were not given any power to mortgage), knowing the terms of the will, entered into an arrangement under which the executors, without consideration, executed a deed to one Phyfe, of certain real property left by Campbell, and Phyfe executed a mortgage to the judgment creditor, whose law firm drew the papers, and searched the title.
    
      In an action brought to foreclose the mortgage,
    
      Held, that the mortgage was invalid and was not a proper exercise of the power conferred upon the executors;
    That the conveyance to Phyfe was given simply to evade the provisions óf the will and to effect the unlawful. purpose of mortgaging the property, notwithstanding the lack of power under the will in that regard;
    That the transaction was precisely the same as though the executors had given a mortgage directly to the plaintiff as collateral security for his judgment debt;
    That the plaintiff’s judgment was not a lien upon any real estate of the testator, and that the executors had no power to create a lien upon that real estate in ■ favor of any such creditor of their testator;
    That the defendants were not estopped from questioning the mortgage of the1 plaintiff, he having given nothing for it, released nothing upon the faith of it, and apparently having lost nothing by accepting it.
    Appeal by the defendant, Amy C. Phyfe and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of January, 189.6, upon the decision of the court rendered after a trial at the New York Special Term directing the foreclosure and a sale of the mortgaged premises described in the complaint herein.
    
      Henry B. Johnson and Joseph IT. Tuttle, for the appellants.
    
      G. IT. Bovee, Jr., .for- the respondent.
   Barrett, J.:

This is an action for the foreclosure of a second mortgage upon the premises No. 62 South Fifth avenue in this city. The main defense to the action is that the mortgage was given as part of a scheme to evade the provisions of the will of William Campbell, deceased. Under this will, Campbell’s executors were given a discretionary power of sale. But- they were given no power to mortgage. The plaintiff had a claim against this estate upon a judgment entered after Campbell’s death upon a verdict directed prior to his death. Campbell’s executors desired to raise money upon the real estate which they held in trust, and the plaintiff desired security for his judgment debt. It was thereupon arranged that the executors should execute a deed of the property in question to the defendant Amy C. Phyfe, who was a young girl twenty-two years of age, the daughter of John I. Phyfe, a son-in-law of the deceased. Miss Phyfe in return was to execute two mortgages, one for $14,000 to a Hiss Morss, who was a client of the plaintiff’s, and the other to the plaintiff, for the amount of his claim against the Campbell estate, This arrangement was carried out. The papers were drawn in the plaintiff’s office and the title was searched by his law firm. They in fact received payment for their services out of the $14,000 paid by Miss Morss. The plaintiff was aware of the terms of William Campbell’s will and .of the limitations upon the power of the executors. He claims that the sale to Miss Phyfe was lona fide¡ and that she had a right if she pleased to secure his claim against the Campbell estate by giving him this second mortgage. It is entirely clear, however, that the sale to Miss Phyfe was not a Iona fide exercise of the power conferred upon the executors by Campbell’s will. There is not the shadow of a doubt that Miss Phyfe was simply used to evade the provisions of the will and to effect the unlawful purpose of mortgaging the property, notwithstanding the lack of power in that regard. She did not pay one dollar for the property, nor did she ever agree to do so. She was simply a name. The title was in form conveyed into that name as grantee and the hand of this grantee was used to create the mortgages contemporaneously assigned. The learned trial judge wrote that no fraud or deceit was practiced and that the executors knew perfectly well what they were doing. This need not be questioned. But it does not decide the case. There is here no essential question of actual fraud or moral turpitude. The real question is whether the transaction effected a lawful exercise of the power conferred upon the executors. There can be no doubt, both upon principle and authority, that it did not. The case on this head is directly within the principle enunciated in Allen v. De Witt (3 N. Y. 276); Russell v. Russell (36 id. 581); Scholle v. Scholle (113 id. 261); and Woerz v. Rademacher (120 id. 62). It is precisely as though the executors had given this mortgage directly to the plaintiff as collateral security for his judgment debt. Such a mortgage would certainly have been unauthorized. So the deed to Miss Phyfe, given for the purpose of doing indirectly what could not be done directly, was not a good execution of the power of sale. The plaintiff’s judgment may have been entitled to priority in payment over other debts of the estate, but it was not a lien upon the real estate in question or upon any other real estate of the testator; and the executors had no power thus to create a lien upon the real estate in favor of any creditor of their testator. "

Note.—The rest of the cases of this term, will be found in volume 7, App. Div,— [Rep.

"Without considering the other questions, both of. fact and law, presented by the parties, we think it plain that the plaintiff’s mortgage is, for the reasons given, invalid and that’the defendants' ar.enot estopped from questioning it. The plaintiff gave nothing for it, released nothing upon the faith of it, and has apparently lost nothing by its acceptance. He simply took it, as he says himself ■, as collateral 'security for his judgment debt. We do not mean, to intimate-, however, that but for these facts the defendants would have been estopped. We'simply say that these facts — conclusive in themselves—-render it unnecessary .to proceed further with the discussion upon that head.

• It follows that the judgment appealed from should be reversed, and-—as upon the case presented by the plaintiff her mortgage cannot be sustained — the complaint dismissed, with costs-.to the executors and also- to the defendant Amy C. Phyfe of this appeal and of the action.

Rumsey,' Williams and Ingraham, JJ., concurred.

Judgment reversed, and the complaint dismissed, with costs to the executors: and' also to the- defendant Amy 0. Phyfe of this appeal and of' the action.  