Mason L. Baldwin, Assignee in Bankruptcy, v. Nehemiah and Ira Raplee. mony of the party chiefly interested in sustaining the mortgage. In this case, the mortgage, on its face, purports to be a security for the payment of a debt of ten thousand dollars, evidenced by the bond of the mortgagor, bearing even date with the mortgage; but it is admitted that no such bond ever existed; and it is alleged that the mortgage was in fact intended to secure the payment of a note of the mortgagor dated nearly four weeks after the date and acknowledgment of the mortgage. The mortgagee, in making an assignment of the mortgage, more than a year after its date, and after the mortgagor had failed and absconded, assumes to assign with it the bond therein described; and when then questioned in regard to the bond, stated that he did not know as there was a bond, but if there was, the assignee should have it, but said nothing whatever in regard to its being accompanied by, or being given to secure the payment of the note which it is now said it was intended to secure, and subsequently, as he testified, he “looked a good deal at different times" for the bond. There is no satisfactory explanation of the circumstance that the mortgage is dated the 14th of April, and the note the 10th day of May, when neither was delivered, or the consideration paid or transferred, until the 18th of May, 1868; there are suspicious circumstances in respect to the cancellation of stamps, and their dates, as before stated; and then there are the entirely inconsistent statements of the sworn answer and oral testimony of the mortgagee, in reference to the time of the actual delivery of the mortgage, and the consideration of the debt it was intended to secure. The sworn answer avers that it was given for $10,000 in cash, before then lent and advanced to the mortgagor by the mortgagee, and for which the mortgagee then held the note of the mortgagor, and was delivered on or about the 19th day of April, 1868; while the oral testimony of the mortgagee Mason L. Baldwin, Assignee in Bankruptcy, v. Nehemiah and Ira Raplee. shows that it was delivered on the 18th of May, 1868, and given for the Ellis mortgage, for which $3,446 36 was allowed, and a check of $6,553 77; thus assuming that it was given for a present valuable consideration, and not for a pre-existing debt; and not for cash lent and advanced, as alleged in the answer. The insertion of the time and place of the recording of the mortgage in the assignment after its execution and acknowledgment, and before it was recorded, is of little consequence, except as showing that papers executed by some of the parties were altered after their execution, in view of the then existing circumstances. Besides these circumstances of suspicion, and others which appear in the preceding statement, it is to be observed that the general statement of Nehemiah Raplee, that this mortgage was given upon the consideration stated in his oral testimony, and to secure the payment of the $10,000 note, is not well supported by his detailed statements of what occurred between him and the mortgagor, in respect to the giving of the mortgage and the purpose for which it was to be given, and was given, and what was said and done at the time the mortgage and note were delivered. In the first part of his examination, and in reply to the question of his counsel, "For what purpose this mortgage was given," he replied, "To secure me for a part of the money I had loaned him." In reply to the question, "Was that indebtedness represented in this note?" he replied, "It was represented there for $10,000. I wish to be understood; that represented $10,000 of his indebtedness to me." In reply to the question, "How came he to give you the note and mortgage?" he testified as follows: "Previous to his giving this mortgage, he was up to my house and said he was to make a payment on the coal property, and wanted to borrow some more money. I said I would help him what I could, and told him he was getting about all I had, and I wanted security. His reply to me was, that he could Mason L. Baldwin, Assignee in Bankruptcy, v. Nehemiah and Ira Raplee. give me a mortgage on his banking building and lot, which he thought was good security for $10,000. He came down here; the conversation was at my house; the next time he came he brought the note and mortgage. He was in the habit of coming Saturday night or Sunday morning. I looked them over a few minutes on Sunday, and did not look at them again until several days after, when I took them from my desk and looked them over. I found out that his estimation, in looking over the figures of certain transactions, was correct, and I then put them away satisfied. There was only enough estimated to amount to $10,000 of what I had let him have. He delivered me a statement at the time of so much of his indebtedness to me as covered the note and mortgage. I have looked a part of two days for the statement, but cannot find it. I have means of stating what made up the amount of the $10,000. I let him have a bond and mortgage amounting to $3,446 33. I gave him my check dated on the 18th May, 1868, for $6,553 77. The two items make just ten thousand dollars." There are other portions of Nehemiah Raplee's testimony which have some slight bearing upon the questions under discussion, but it is believed that it does not strengthen the case of the defendants. By their answer and the character of their proofs, they have assumed the burden of sustaining the mortgage by parol testimony, and showing that it was, in fact, given to secure the payment of the $10,000 note referred to; and the testimony on the case has not satisfactorily established their defence. A decree will therefore be made, setting aside the mortgage in controversy, and discharging the premises mortgaged from any lien under the same, with costs. It has not been forgotten that it was claimed that there was at least proof of a valid agreement to execute a proper mortgage, and that such agreement would, in equity, be so enforced as to give it the effect of a mortgage. If a cross-bill had been filed to obtain Mason L. Baldwin, Assignee in Bankruptcy, v. Nehemiah and Ira Raplee. a reformation of the mortgage executed, or to give effect to the agreement for a mortgage, the relative equities of the mortgagee and the assignee in bankruptcy, as the representative of the general creditors of Jefferson T. Raplee, would have been brought into competition, and it is not considered at all probable that a court of equity would have given relief to the holder of the secret lien of the unrecorded mortgage against the representative of creditors who had trusted the bankrupt, and deposited their money in his bank, on the faith of his being the owner of the property covered by the mortgage in controversy here, and of the Pennsylvania property, free of incumbrances, when the defendant, Nehemiah Raplee, held unrecorded mortgages on such property to its full value, with full knowledge that the bankrupt was insolvent, and that he was continually receiving deposits, as a private banker, from persons ignorant of his financial condition. It was substantially conceded, upon the argument, that the assignee in bankruptcy could not avoid the mortgage in controversy on the ground that it was made and taken in violation or fraud of the provisions of the Bankrupt Act-it having been executed and delivered more than six months before the petition in bankruptcy was filed against Jefferson T. Raplee. It has not, therefore, been deemed necessary to discuss the question whether, in a court of equitable jurisdiction, the limitation of six months, contained in the Bankrupt Act, begins to run, in the case of a concealed fraud, from the time of the commission of such fraud, or from the time of the discovery of such concealed fraud, as in other cases where the statute of limitations is pleaded. See Carr . Hilton, 1 Curtis' C. C. Reports, 390; Moore v. Green, 2 Id. 202; Pritchard v. Chandler, Id. 488; and Martin v. Smith, American Law Register, Nov. 1870, vol. II. p. 694; and also the authorities cited in those cases.* * See U. S. v. Maillard, p. 459. In the Matter of Alexander Harthill, a Bankrupt. Nor has it been deemed necessary to discuss the question whether, under the principles established in Shawhan v. Wherrett (7 Howard's Rep. 627), the holder of a secret lien, under an unrecorded mortgage, can overreach the title of an assignee in bankruptcy, by recording his mortgage after he has knowledge of an act of bankruptcy committed by the mortgagor. A decree will be entered in accordance with this opinion. Southern District of New York. JANUARY, 1871. IN THE MATTER OF ALEXANDER HARTHILL, A BANKRUPT. CONVEYANCE BY BANKRUPT.-FORM OF WARRANT.-POWER OF THE COURT.-PARTY. In a proceeding in involuntary bankruptcy, a warrant was issued, commanding the marshal to take possession provisionally of all the property and effects of the bankrupt, and "of all the goods, assets and property lately conveyed, whether by bill of sale or otherwise, by the said Alexander Harthill to Joseph Henry." Under this warrant, the marshal took possession of certain property conveyed by the bankrupt to said Henry before the filing of the petition. Henry applied by petition to the Court, for an order that the property be restored to him, alleging that the transfer to him was a bona fide purchase, and obtained an order restraining the marshal from any removal of the said property. A reference was ordered to take proof as to the validity and bona fides of |