EMERSON . ATWATER.

of the real estate has been sold, and the price of each separate parcel; what part is under contract of sale and to whom, and at what price, and the amount paid and to be paid on such contracts; and what remains unsold and not under contract of sale. The commissioner to have power to examine the parties under oath, and to compel the production of all books, papers and contracts, necessary to the inquiry, and to take such further evidence, in addition to what has already been taken, relating to the reference, as may be offered by the parties, or he may deem proper. Let an interlocutory decree and order be entered accordingly.

To prevent any misconstruction of what we have said, we must be understood as speaking of Emerson's interest in the land conveyed to Atwater, and not of the Jennison interest, whatever that interest may be, as no mention is made of it in the pleadings, and it is referred to incidentally only in the testimony. What it is, does not appear from the papers before us.

case.

MARTIN Ch. J. and CHRISTIANCY J. concurred.

CAMPBELL J. did not sit, having been of counsel in the

Joseph Graydon v. Robert Church and Others.

Where, under a creditor's bill, in the court of Chancery of New York, a receiver was appointed, and the debtor, in pursuance of the order of the court, made a general assignment to the receiver of all his property, reciting in it the proceedings had in the cause, and the assignment was made in due form for the transfer of an interest in lands under our statutes,-Held, That the assignee might file his bill in chancery, in this state, to foreclose a mortgage interest, or to enforce a right of redemption, held by the debtor at the time of the assignment, in lands in this state.

The receiver, in such a case, sues not strictly in his official character as receiver, by virtue of his appointment by the court of New York, but as an assignee, holding the legal interest in the property by virtue of the assignment of the debtor.

GRAYDON v. CHURCH.

It is not necessary, in such case, for the receiver to go behind the recitals in the assignment, and prove the prior proceedings of the court. The recital of these proceedings in the assignment are to be taken as true, so far as they become material; and the courts of this state will notice and act upon them so far as to recognise the complainant substantially as trustee for the creditors, in whose behalf the assignment was made, and will assist the receiver to collect and render the property available for the purposes of the trust, but will not concern themselves with any question relating to the disposition of the proceeds, as between him and the creditors, nor interfere between him and the court by whose appointment he acts. It is for that court to hold him to his accountability for the trust property, especially where all parties reside in that state, and the creditors have not appealed to this court for any such purpose.

Where the owner of a mortgage on which nothing was to become due for several years, assigned the mortgage to secure a debt of his own to an amount less than the mortgage, and the assignment was upon condition that if the assignor should pay his indebtedness to the assignee on or before the first day of May following, then the assignment was to be void, but if not, and the assignee should collect the mortgage moneys, he should, after retaining the amount of his debt, interest, and charges, pay over the surplus to the assignor, Held, That under this assignment the assignor, or those claiming under him, would be entitled to this surplus at whatever period in the future it might be collected, and that it constituted a trust in the hands of the assignee, or any person claiming through him under this assignment.

An assignment of a mortgage of lands, for the purpose of securing a debt, constitutes a mortgage of a mortgage. And where the mortgage itself was executed prior to the act abolishing ejectment by mortgagees, Held, That the assignor's right to redeem the mortgage created by his assignment, must be placed upon the same footing as that of a mortgagor of real estate.

Where one thus standing in position of mortgagor of a mortgage was present at, and assented to, a subsequent assignment of the mortgage, by his assignee, to secure a debt of the latter less in amount than it was first assigned to secure, -Held, That he was not thereby estopped from asserting his right to redeem, since he must be understood as assenting only to an assignment of such interest as his assignee had in the mortgage.

Nor would statements made by such mortgagor of the mortgage, at the time of such assignment, that if the debt he was owing was paid from the mortgage he would be satisfied, estop him from asserting his right to redeem, since such subsequent assignee was not induced by such representations to invest in the mortgage a larger sum than his assignor's interest therein.

And where a receiver in chancery, to whom such mortgagor of a mortgage had assigned, was called upon by a subsequent assignee and requested to redeem his interest in the mortgage, and was told that unless such redemption was made, the assignee was about to transfer the mortgage to another, and the receiver declined to redeem, and told the assignee he might sell to whom he pleased; whereupon the assignee did sell, but to one who was aware of the conditional nature of the assignments,-Held, That the receiver did not thereby forfeit his right to redeem, or estop himself from asserting such right.

Where in such case a subsequent assignee of the mortgage took a deed of the mortgaged premises, from the original mortgagor, to himself,-Held, That this deed had the effect to foreclose the mortgage as to the mortgagor so deeding; that the land now represented the mortgage, and the mortgagor of the mortgage, or one claiming under him, might file his bill in chancery, and have decree that

GRAYDON ย. CHURCH.

the amount of the mortgage, less the sum it was assigned to secure, be paid to him, and in default thereof, the premises be sold to satisfy first the sum the mortgage was assigned to secure, and next, to pay him the amount of the mortgage less such sum.

Where such bill was filed, and it appeared that possession had been taken under such deed, and complainant had been remiss in asserting his rights, and might thereby have induced defendants to treat the property as their own, discharged of the lien of the mortgage, Held, That complainant was not entitled to an account of the rents and profits of the premises as against the defendants.

Heard May 18th, 14th, and 17th. Decided July 12th.

Appeal by complainant, from Calhoun Circuit in Chan

cery.

The bill alleges that, on May 3d, 1836, George Ketcham, to secure to George Fetterman the purchase price of certain premises in Calhoun county, executed to the latter his bond for $8,000, payable, with interest, in eight equal annual instalments, and secured the same by collateral mortgage on the premises purchased:

That Fetterman subsequently became insolvent, and a creditor's bill was filed against him in the Court of Chancery of the state of New York; and on November 19th, 1838, complainant was appointed by said court, receiver of all his effects: That on January 7th, 1839, Fetterman, under his hand and seal, executed and acknowledged an assignment to complainant of all his estate and effects, which assignment was duly approved by the Court, and, on April 22d, 1839, recorded in the office of the Register of Deeds of Calhoun county:

That on March 1st, 1838, Fetterman, being indebted to Robert G. Cruttenden in the sum of $1200, assigned the Ketcham bond and mortgage to the latter, as security for the payment of this debt, specifying, in the instrument of assignment, that it was made upon the express condi tion that, if Fetterman, or his representatives, should pay to Cruttenden the said indebtedness, on or before May 1st, 1838, then the assignment should be void; and that, in case Cruttenden should collect more than the amount of his debt, interest, and reasonable charges of collection, the

GRAYDON v. CHURCH.

surplus should be paid to Fetterman.

With this assign

ment, the bond and mortgage were delivered to Cruttenden:

That Cruttenden subsequently assigned his interest in the bond and mortgage to Isaac W. Bishop, to secure a debt due from him to Bishop, which was less in amount than the sum for which Cruttenden held them in security; and that Bishop afterwards transferred the same to Czar Jones, and Jones to George N. Bolles; and that, at each of these transfers, the original bond and mortgage, and each prior assignment, were passed to the assignee:

That the assignment by Jones to Bolles was procured by the latter at the suggestion of Ketcham, who afterwards, and in full knowledge that the assignment of the mortgage by Fetterman was by way of security only, conveyed the mortgaged premises to Bolles; and that Bolles, without receiving any payment from Ketcham, other than this conveyance, cancelled the bond by tearing off the seal and erasing the signature, but did not deliver it up to Ketcham :

That, subsequently, in July 1845, Bolles took possession of the premises, and leased the same to Robert Church, who continued in possession to the time of filing the bill:

That $3500 was paid on the mortgage to Fettermau, before his assignment to Cruttenden, and $1430 to Jones, while he held it as assignee: That Church had been five years in possession of the premises at the time of filing the bill, and that the yearly value of the premises was $300 : And the bill, therefore, claimed that the special interest of Cruttenden, and those claiming under him, had been determined by payment of the debt for which it was assigned to him, and that complainant was entitled to all the rights of Fetterman in the premises.

And the bill prayed a discovery and account; that, if any thing remained due from Fetterman to Cruttenden, complainant might be allowed to redeem on paying the

GRAYDON v. CHURCH.

amount so due; and that Bolles, and all claiming under him, might be decreed to surrender possession of the premises to complainant; or, if it should appear that those claiming under Bolles were ignorant of the interest which the latter had under the assignments, and had parted with money in good faith while so ignorant, then that a foreclosure and sale in the usual form might be decreed.

The bill made the representatives of Ketcham (who was deceased) Cruttenden, Bishop, Jones, Bolles, Robert Church, Ennis Church, William McCammis, and Samuel M. Van Santvoord, parties defendant.

All the defendants suffered the bill to be taken as confessed, except Robert and Ennis Church. They answered, admitting the execution of the bond and mortgage; denying all knowledge of the assignment to complainant, admitting the assignment by Fetterman to Cruttenden, and the sundry mesne assignments to Bolles; but alleging that, before the assignment from Bishop to Jones, Bishop requested complainant to redeem the assignment, by paying the debt due to Cruttenden; and that complainant refused to do so. They admit the conveyance by Ketcham to Bolles, upon the consideration charged in the bill, and the leasing by Bolles to Robert Church.

The cause having been put at issue, testimony was taken as follows:

Bolles testified that Ketcham proposed to sell him the property covered by the mortgage, and wished him to procure from Jones an assignment of the bond and mortgage. He did so July 12th, 1845; and they were delivered to him, with all the prior assignments, attached together. He then made an arrangement with Ketcham, by which the latter was to quit - claim the mortgaged premises to him, and he was to cancel Ketcham's bond. This arrangement was carried out October 11th, 1845, and the bond and mortgage cancelled, by erasing the names, without the receipt of any other consideration than the quit - claim deed. Ketcham told