Wood v. O'Brien

On the 15th of January, 1889, one Schneider conveyed certain lands to Michael O’Brien, one of the defendants. The deed was put upon record the same day it was delivered. Simultaneously with the delivery of the deed to O’Brien he executed a paper evidencing the fact that the title was held for Mrs. Frances Croft. This declaration of trust was not recorded. On the 23d of March, 1889, O’Brien gave the bond and mortgage described in the complaint to the plaintiff for an expressed consideration of $7,000. The history of the alleged consideration is as follows: William F. Croft was the husband of Frances A. Croft. He was buying and selling stocks in her name, through Work, O’Keefe & Co., brokers. James H. Work was an attorney at law, and the brother of Work, one of the partners, a legal adviser of the firm itself. William F. Croft applied to James H. Work for the loan. He was accompanied by O’Keefe. Croft stated that the title was in the name of O’Brien, James H. Work gave Crott an order on the firm of brokers for $7,000, and took the mortgage in the name of thé plaintiff, who was his stenographer. Neither the plaintiff nor the attorney, his employe, had any bank-account with the firm; nor does it appear that the attorney had any credit which authorized him to draw upon the firm. The evidence does not show any payment of the $7,000. The testimony of the attorney from the books that $7,000 was credited to Croft’s account, was improperly received, and, without further proof, was inconclusive and unsatisfactory. It established at best but an imaginary consideration, having no basis but a formal entry resting on no debt, and never having been made good by an actual payment. There is no proof that William F. Croft ever received anything from the firm on the order. He testifies that he did not. The judgment should therefore be reversed, and a new trial granted, upon the facts as well as the exceptions. The appeal from the order denying motion to *747vacate judgment becomes unimportant, but to finally make the record right it should be reversed, without costs. The order making Mrs. Croft’s executor a party should stand. She owns the land, and the mortgage is an apparent lien on her land. Her declaration of trust is not on record, but the plaintiff has no right to prevent her from making such defense as she has now,—that her trust title is known. The judgment should be reversed, and a new trial granted, costs to abide event; and the order making Croft’s executor a party should be affirmed, with costs and disbursements. All concur.