#### William Pittman, as Adm’r of John I. Pittman, deceased, Resp’t, *v.*Henry H. Hall, *et al.,*Appl’ts.

*(City Court of Brooklyn, General Term,*

*Filed November*22, 1886.)

1. MORTGAGE FORECLOSURE — WHAT DEFENSE CAN BE MADE.

*2.*Same — Deed subject to a mortgage — -Grantee when estopped,

The defense that a mortgage was given to protect the property from apprehended claims against the mortgagor is not available to the mortgagor though it may be to the creditors of the mortgagor.

Where a grantee accepts a deed of premises subject to a mortgage, he is estopped from questioning the validity of the mortgage.

Appeal from a judgment of foreclosure of a mortgage subject to a certain life lease rendered at special term.

March 19, 1864, George Moore contracted with defendant Henry H. Hall for sale of house 358 Clinton street, Brooklyn, then owned by Moore, and Hall paid $250 on account, April 18, 1864. By direction of Hall, Moore and wife conyeyed said property to John I. Pittman, plaintiff’s intestate. The purchase money, $5,250, was paid by Hall to Moore. Moore did not know Pittman. Hall has resided in the house since that time, December 29, 1866. Pittman conyeyed the premises to Hall, January 5, 1867 (acknowledged July 11, and recorded July 12, 1867). Hall gave to Pittman the bond and the mortgage in suit on premises for $5,000, to run three years and the mortgage expressly states that it “ is given to secure a part of the consideration expressed in said deed.” Neither principal nor interest have been paid.

January 17,1877, Hall gave to John O. Hall, deed of premises, subject to two mortgages, one the mortgage in suit.

May 15, 1888, Pittman gave to Hall a life lease of premises.

February 28, 1885, John. I. Pittman died, and the plaintiff was appointed administrator of his personalty. He thereafter began this action of foreclosure. The defense was that H. H. Hall bought and paid for this property with his own money; that there was never any consideration for the bond and mortgage ; that Pittman was Hall’s brother-in-law and an intimate friend, in whom he had the most perfect confidence, and that he gave these instruments to him to guard Hall’s interests, to cover up his property, and to ward off claims which might be brought against him by reason of acts of a former partner named Ryder, with whom he had been associated before he went into the army .at the beginning of the rebellion.

Reynolds and Clement, JJ., sitting.

*Frederic A. Ward,*for resp’t; *Dailey*Bell, for appl’ts.

Pee Cubiam.

We see no defense to this action on the facts ■proved, or offered to be proved. The plaintiff’s intestate conveyed the premises in question to the defendant, H. H. Hall, *854and took back the mortgage in suit, which is in terms given to-secure a part of the purchase money.

If a mortgagor can be permitted to overthrow the bond and mortgage in the manner attempted in this case, there would be no safety in such securities. We think he is concluded by the instruments executed under his hand and seal.

The defendant J. O. Hall, accepted a deed of the premises subject to the plaintiff’s mortgage, and is estopped from questioning its validity.

The attempted defense that the mortgage was given to protect the property from apprehended claims against the mortgagor, is clearly insufficient. The creditors of the mortgagor-might have attacked the mortgage on that ground but not the mortgagor himself.

Defendant is given the full benefit of the lease from plaintiff’s intestate, by the provision that the premises shall be sold, subject to such lease. He complains that it may still be sold under an execution issued upon a judgment for deficiency in this action But there was no contract that the lease should be exempt from all claims of creditors, and the lessor is not deprived of any of his remedies as mortgagee, simply because he gave the lease.

We see no error committed to the injury of the defendants* and therefore affirm the judgment with costs.