1. Held, the evidence in the case does not sustain the allegation that the mortgage in question was given without consideration moving to the defendant corporation mortgagor, or that the defendant assignee of the foreclosure decree had knowledge of its infirmity or of petitioner's interest in the mortgaged property.
2. Although the assignee of a bond and mortgage takes his assignment subject to all defenses which exist in favor of the mortgagor as against the mortgagee, the assignee being under a duty to ascertain from the mortgagor whether any defense exists, such as assignee does not take the assignment subject to latent equities which may exist in favor of a third party as against the mortgagor and of which the assignee had no notice.
3. One who takes an assignment of a court decree adjudging an amount to be due on a mortgage is under no duty to go behind the decree to inquire whether the mortgagor has a latent defense which he has not urged.
4. Defendant corporation mortgagor interposed no defense to the foreclosure and permitted a final decree to be entered against it, which in effect adjudged the mortgage to be a valid lien. Held, that if the mortgagor had a defense it was its duty to speak. Its silence amounted to a representation that the mortgage was incontestable and created a situation which led to the natural belief that it could raise no objection to the collection of the mortgage debt.
PER CURIAM.
We have carefully examined the petition and affidavits in this cause, and find that the refusal of the court of chancery to open a final decree in foreclosure was based upon the exercise of a sound discretion.
The order appealed from is affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 14.
For reversal — None.