A note and mortgage for $600 were claimed by the defendant to have been given by him to the plaintiff to secure an existing indebtedness to the latter of $175, and to cover up the defendant's property, to the extent of the excess, from a possible future attachment. The defendant had no other creditors at the time, nor, so far as appeared, at the time of trial; and the plaintiff, while aware that the excess was fictitious, did not know what the defendant's precise purpose was in the transaction. Held: — 1. That upon the facts found the note secured by mortgage might fairly be treated as collateral security for the amount actually due, upon which security, as well as upon the original debt, the plaintiff was entitled to sue. 2. That if the purpose of the defendant were fraudulent, as claimed, the plaintiff, who did not participate in the fraud, could not be deprived thereby of his right to sue upon the note and to recover at least the amount of his debt. The note contained a promise to pay taxes, but the complaint made no reference to such promise. Held that the variance, if any, was immaterial. The trial court may in its discretion refuse to permit the defendant to go into his own case upon the cross-examination of the plaintiff's witnesses.
HAMERSLEY, J.
The substance of the defendant's claim is that the court erred in holding, upon the facts found, that the plaintiff was entitled to sue upon the note. If any reasonable inference from these facts will support the action, the judgment should be sustained. We think the facts fairly justify treating the note secured by the mortgage as a collateral security for an existing indebtedness of $175. Such a security gave the plaintiff not only the right to appropriate the land pledged for the satisfaction of the principal indebtedness, but also the right to whatever advantage there might be in the ability to sue the defendant upon the note given as security, as well as upon the principal debt. In re Waddell-Entz Co., 67 Conn. 324, 334.
If the purpose of the defendant in putting the lien upon his land was fraudulent, as he now claims, so as to invalidate the mortgage deed, that fraud, in which the plaintiff did not participate, does not deprive him of his right to sue upon the note; and upon such suit he is entitled to recover at least the amount due upon his principal indebtedness. The defendant cannot complain if the amount recovered was too small.
Upon the trial the plaintiff offered in evidence the note upon which suit was brought, and the defendant objected, on the ground of variance between it and the note described in the complaint: the note offered in evidence containing a promise to pay taxes, while the complaint contained no reference to taxes. The court overruled the objection and the defendant duly excepted.
The plaintiff did not seek to recover damages for a failure to pay taxes; the note offered in evidence supported the allegations of the complaint, and the variance between it and the description in the complaint was immaterial. The objection was properly overruled.
The plaintiff testified upon his examination-in-chief that the note was due and held by him. The defendant's counsel upon cross-examination sought to prove by the plaintiff the fact of payment and other matters of defense. The court excluded questions asked for this purpose, on the ground that they related to the defendant's case. The defendant duly excepted to these rulings. Subsequently the plaintiff was called as a witness by the defendant, and was fully inquired of as to the matters referred to.
The order of testimony, and the cross-examination of a plaintiff's witness for the purpose of establishing the defendant's case, are largely within the discretion of a trial court. The defendant was not injured by the exercise of that discretion as stated in the finding.