Hannan v. Hannan

In a writ of entry brought by a mortgagee against the heirs of the mortgagor, to foreclose a mortgage of land, it is a good defence that the mortgage was given without consideration ; and paroi evidence is admissible to show that no debt ever existed between the parties to the mortgage.

Writ of entry, dated October 6, 1862, against the heirs of James Hannan, to foreclose a mortgage of land in Brimfield. Plea, nul disseisin, with a specification of defence that the mortgage was given without consideration, and was never intended or considered by the parties to it as a valid transaction. At the trial in the Superior Court, before Brigham, C. J., it appeared that James Hannan, on October 6, 1862, executed and delivered the mortgage to the demandant. The consideration stated in the mortgage was |1200, and the condition was as follows : “ Provided nevertheless, that if the said James Hannan, Ms heirs, executors or administrators, shall pay unto the said Dennis Hannan, his executors, administrators or assigns, the sum of twelve hundred dollars on demand, with interest annually, then this deed, as also a note bearing even date with these presents, signed by the said James Hannan, whereby he prom« ises to pay to the said Dennis Hannan the said sum and interest at the times aforesaid, shall both be absolutely void to all intents and purposes.” The demandant contended that there was a pecuniary consideration for the mortgage, but that no note, as recited in the mortgage, was given, and he produced none; and he further contended that a consideration was implied from the instrument. It was conceded that nothing had been paid upon the mortgage, either principal or interest. The tenants contended that it was competent for them to show by paroi evidence that no indebtedness ever existed between the parties to the mortgage, as a consideration therefor; that the mortgage was given without consideration, and was not given by James to Dennis Hannan as a gift, but to put the property out of his hands to protect it against possible liabilities to third parties ; and contended that such proof, showing that there was no debt due, would constitute a good defence to the action, and that no conditional judgment could be had. It was thereupon agreed that, if such proof was competent, and a good defence, judgment should be entered for the tenants; otherwise, judgment for the demandant, and conditional judgment for $800, and interest from the date of the mortgage. By agreement of both parties, the case was taken from the :ury before verdict, and reported to this court.