1. Considerations for a deed are of two species, good and valuable; a good consideration is that of blood and natural affection; money and money's worth, and marriage, constitute a valuable consideration, which the law esteems an equivalent given for a grant. (2 Book of Blackstone's Commentaries, p. 297; Verplank v. Story, 12 Johns. R. 536, 549; Wood v. Jackson, 8 Wend. R. 9, 33; Magnian v. Thompson, 7 Whit. R. 389.)
2. There was no error in allowing proof of the actual consideration for the transfer of the mortgage; it was of the same species, and therefore admissible. This doctrine seems to be the settled rule now in almost every State in the Union. (Belloud v. Briggs, 7 Pick. 533; Johns v. Church, 12 Johns. 557; McCrae v. Punnot, 16 Wend. 460; French v. Green et al., 5 Barbour R. 455; Dodge v. Patten & Allen , 18 Id. 193; Jacks v. Coryhut, 3 Watts. R. 151; Hasey v. Alexander, 1 Rand. R. 219; Effs v. Randolph, 2 Call's R. 103; Duval v. Bibb, 4 How. & Munf. R. 113; Steele v. Worthington, 2 Ham. R. 182; Brackett v. Wait, 6 Vermont R. 426; Mead v. Steign, 5 Porter's R. 498; Hinds, lessee, v. Langsmith, 11 Wheat. R. 199; King v. Scammurden, 3 Tenn. R. 474; Sueton v. Wheaton and Wife, 1 American Leading Cases, 49; 8 Wheat. R. 229; 1 Swift's Digest, 121; Belden v. Seymour , 8 Conn. R. 304.)
3. If the Court erred in admitting proof of the actual consideration for the assignment, in the absence of any proof on the part of the grantee, the payment of the judgment should nevertheless be affirmed, on the ground that a voluntary conveyance, not actually fraudulent, as relates to the grantee, may be made effectual by matters ex post facto. (Verplank v. Story, 12 Johns. R. 536; Wood v. Johnson, 8 Wend. R. 9; Cathcart v. Robinson, 5 Peters' R. 289; Maguire v. Thompson, 7 Wheat. R. 389.)
And again, the notes secured by the mortgage were mere choses in action, transferable by assignment, and the mortgage is mere incident to the debt, and following it into whosesoever hands it might legally come, to secure the payment thereof, without any assignment; the assignment of the debt operates asan assignment of the mortgage. (Green v. Hart, 1 Johns. R. 590; Runger v. Merser, 11 Johns. 534; Jackson v. Curtis, 19 Johns. R. 325; Wilson v. Troop, 2 Con. R. 195, 231; Jackson v. Blodget, 5 Con. R. 202.)
4. The assignment was for a valuable consideration, which was duly received by the assignor, pursuant to the agreement between all the parties. The agreement to marry was mutual; and, on its being consummated, it no longer remained an executory compact.
JUDGES: The opinion of the Court was delivered by Mr. Justice Terry. Mr. Chief Justice Murray concurred.
OPINION
TERRY, Judge
The plaintiff in this case seeks to recover under an assignment of a mortgage, which assignment on its face purports to have been made in consideration of three thousand dollars.
Defendant in his answer averred that the assignment was made without consideration, with intent to defraud the creditors of the assignor, and was therefore void by the Statute of Frauds. On the trial the consideration was shown to be the marriage of the plaintiff with the assignor.
It is contended by appellant, that the assignment having been attacked as fraudulent, the admission of parol proof to show a consideration other than that expressed on its face was error; and in support of this position he cites several English and American authorities, in which it is held that a deed attacked for fraud cannot be supported by proof of a different consideration than that expressed in the body of the instrument. On this point, however, the authorities are by no means uniform; the majority of the American cases being opposed to those cited. In McCrea v. Punnot et al. 16 Wend. 460, the doctrine is elaborately discussed; the conclusion at which the Court arrived being, that the consideration clause in a deed can be explained by parol proof. (See 11 Wheat. 199; 7 Pick. 533; 12 Pick. 557; 3 Watts, 151; 1 Rand. 219; 2 Call. 125; 12 Johns. 536; 6 Vt. 426.)
Cowen and Hill, in their notes on Phillips' Evidence, part 2, page --, after commenting on the English decisions say: " The English decisions, therefore, whatever may be said of their dicta, do not appear to have gone beyond the point of disallowing proof to show a consideration of a different species, so as thereby to change the nature of the deed; for instance, where under such circumstances a deed imports a bargain and sale merely, and the consideration mentioned is disproved, or turns out so entirely inadequate as to raise the presumption of fraud, it shall not be supported by proof that it was intended to operate as a voluntary conveyance." Here the consideration proven is of the same species as that mentioned in the assignment.
But although the authorities are conflicting as regards the admissibility of such evidence to support deeds or solemn instruments under seal, I am not aware of any case in which it has been held that the consideration of the assignment of a personal chattel or chose in action, may not be proven by parol, and a different one established than that expressed in the instrument.
Under our system, a mortgage is a mere incident to the debt which it is given to secure; to vest the plaintiff with the absolute ownership and control of it, no formal assignment was necessary; the simple indorsement and delivery of the promissory note was sufficient to carry with it the mortgage, which was its incident.
It will not be questioned that the consideration for making or indorsing a promissory note may be gone into at any time, and there can be no reason for adopting a more stringent rule as to the incident.
The judgment of the Court below is affirmed, with costs.