Stephens v. Humphreys

The learned judge who presided at the trial of this cause was fully justified in the remark he made at the close of the evidence, that not the slightest suggestion of a defense was presented in the proofs. - The defendant R. L. Humphreys undertook to show that the bond and mortgage' were purchased by attorneys with the intent and for the purpose of bringing an action thereon, in violation of the statute: Code Civil Proc. § 73.- In the attempt to establish this defense the party interposing it signally failed. The attorneys had no personal interest in the transaction at all, and it clearly appears that the purchase was originally made with the object of protecting the interest of a judgment creditor, (Trimmer,) who subsequently, and because a payment had been made on account of his judgment, did'not care to complete the transaction; and, at his request, his attorneys induced the plaintiff, who is not a lawyer, to buy the bond and mortgage, and he did so on his own account, and not as a mere cover for the attorneys; and, as he swears, (being *911called as a witness for the defendant,) he “put the money into that security as an investment.” Whether or not the plaintiff bought with an intent to foreclose is not material. The interdiction of the statute did not apply to him if he in good faith bought, and the attorneys were not “in any manner interested in buying.” If they procured the purchase to he made in order that they might benefit, and the purchaser was merely acting in subserviency to their desire, the defense might be sustained; but it is plain that when Trimmer did not care to proceed with the matter, and asked the attorneys to find some one to take it off his hands, the plaintiff was induced to do so. The facts of the case as they appeared on the trial would not have authorized any other conclusion than that reached. It did not appear that the bond and mortgage were bought solely that the attorneys might bring a foreclosure first, and therefore the case is not controlled by what was decided in Browning v. Marvin, 100 N. Y. 144, 2 N. E. Rep. 635. The judgment must be affirmed, with costs. All concur.