gave the deed, to convey any estate in the land, or more than a life estate, would not his bill be bad on demurrer? A party can not avoid his own deed, in a court of law or equity, except on some of those grounds, which have long been held sufficient to absolve him from its obligation. I can discern no one of them in this replication; and therefore, I consider it insufficient.

WAITE, J., was of the same opinion.

Judgment to be affirmed.

A RECEIPT IN FULL WILL OPERATE in Connecticut as a discharge of any further claim of the party by whom it was given: Hurd v. Blackman, 19 Conn. 181; Bean v. Barnum, 21 Id. 204; Bonnell v. Chamberlin, 26 Id. 492; Rose v. Persse and Brooks Paper Works, 29 Id. 267; unless it was executed under circumstances of mistake, accident, or surprise, or is founded in fraud: See cases supra. It may even be shown that it was not intended at the time that the receipt was given that it should apply to a certain demand: Bishop v. Perkins, 19 Id. 312, citing the principal case. The note to the parallel case of Fuller v. Crittenden, 23 Am. Dec. 364, reviews the cases on the subject of the operation of a receipt and the manner in which it may be explained.

SANFORD V. WHEELER,

[13 CONNECTICUT, 165.]

MORTGAGE MUSt Express the REAL NATURE of the liability which it is intended to secure. A mortgage, as if for an absolute indebtedness, will not, as against other creditors, though it was intended for that purpose, secure the amounts for which the mortgagee is responsible in his character of surety to the mortgagor.

PART OF A MORTGAGE DEBT BEING AFFECTED BY A LEGAL INFIRMITY, and the other part free therefrom, equity will uphold the mortgage as security for this latter portion, in the absence of actual fraud.

BILL in equity. In 1834, Stephen Wheeler, in contemplation of insolvency, executed to his son, George Wheeler, an unconditional note for two thousand six hundred and one dollars and sixteen cents, payable on demand, and secured the amount by a mortgage executed at the same time. At the time, he owed to his son one thousand four hundred and eighteen dollars and thirty-six cents, and the latter was liable as his surety to various persons to the amount of one thousand one hundred and eightytwo dollars and eighty cents. The amount of the note was composed of these aggregate amounts. Soon after the execution of this mortgage, Stephen Wheeler assigned to plaintiffs in trust for his creditors. The object of this action was to set aside the mortgage executed to George Wheeler in favor of the other

creditors. The case was reserved for the consideration of this court.

Bissell and Booth, for the plaintiffs.

Swift and Dutton, contra.

CHURCH, J. The trustees under the assignment claim, that the mortgage of Stephen Wheeler, as against his creditors, is either totally or partially fraudulent and void: and whether it is either the one or the other, or whether it is good for the whole amount of the note described in its condition, are the questions reserved for our advice.

1. We think this mortgage can not be sustained for the whole amount pretended to be secured by it, against the creditors of Stephen Wheeler, but must be set aside for so much as embraces the debts for which the defendant was only a surety. It is certain that Stephen Wheeler did not owe this money to George: he owed it only to the original creditors, who were still unpaid. George had not paid it; nor was it certain he ever would; no had he done any act, by which Stephen had become discharged from his obligation to pay. The estate of Stephen was still responsible for these debts: and the case even states, that they were in fact presented to the commissioners upon his estate and allowed; and the original creditors were entitled to receive their dividend. Now, to permit George, under this mortgage, to recover the whole amount of this note, would be to permit him to take from the other creditors of Stephen Wheeler, at least the amount of the dividends for which he has paid nothing.

George Wheeler may have been entitled from his father to security for his liabilities for these debts, and could have been made secure, by a proper mortgage deed; but for some cause unknown to us, the parties preferred a different course. To have effected this purpose, the mortgage should have disclosed the nature of the transaction; and the subject-matter of the mortgage should at least have appeared with reasonable certainty; although the details and particulars need not be set forth. But what have we here? A mortgage given to secure the payment of a note of two thousand six hundred and one dollars and sixteen cents, due from the mortgagor to the mortgagee, payable absolutely and unconditionally, and on demand; and without any intimation that any other than an absolute and bona fide debt of the description mentioned was in the contemplation of the parties. The superior court has found that no such debt as this ever existed or was ever due. The infirmity in this mort

gage is not that the true amount of the debt is not set forth, but that a claim altogether different in its nature, character, and amount from the one referred to in the condition of the mortgage deed, is attempted to be substituted for the debt described -the claim of a surety, and not of a creditor. And however equitable as between the parties to the mortgage it may be that it should stand as security not only for the debt really due, but as an indemnity also for the liabilities of the mortgagee, yet as against third persons interested, it can no more be made to do this, than a mortgage given to secure a bond debt of a specified description, can be made to remain as security for the payment of a book debt: Pettibone v. Griswold, 4 Conn. 158 [10 Am. Dec. 106]; Stoughton v. Pasco, 5 Id. 442 [13 Am. Dec. 72]; Hubbard v. Savage, 8 Id. 215; Crane v. Deming, 7 Id. 387; Booth v. Barnum, 9 Id. 286 [23 Am. Dec. 339].

2. But for so much of the consideration of the note described in the condition of this mortgage deed as consists of the actual debt due from Stephen Wheeler to George Wheeler, this mortgage must be supported. It is true, that it has been holden, that if there has been actual fraud, even in respect to a part only of the debts attempted to be secured by mortgage, a court of equity, and upon the application too of him who comes to seek equity, will set aside the entire mortgage, and forbid that it shall stand good for such part as may be bona fide: Boyd et al. v. Dunlap, 1 Johns. Ch. 478; Sands et al. v. Codwise, 4 Johns. 536, 599 [4 Am. Dec. 305]; Weeden v. Hawes, 10 Conn. 50. But such is not the present case. The superior court has found, that there was no actual fraud in this transaction. The consideration of this note is very distinctly divisible; in part and to an ascertained amount, it consists of a bona fide debt, and in part, of mere liabilities. The present applicant appeals to a court of equity against this mortgage. He must come, then, as one disposed to do that justice to his adversary, which he demands from him; and this he can not do, while he seeks to deprive him of a security for an honest debt; and this court, in the exercise of equitable powers, can give aid to no such attempt. If the facts found in the present case, are only such as have a probable tendency to deceive or mislead, without the malo animo necessary to constitute actual fraud, they may constitute what is sometimes termed a constructive fraud; and then a court of equity will, if it be practicable, give effect to the security, so far as to permit it to stand in favor of such part of the debt intended to be secured by it, as is unaffected by fraud, or other legal infirmity. [See the authorities

cited above.] The present case clearly falls within the operation of this principle; and we must, therefore, advise the superior court, that this mortgage deed be permitted to remain a valid security for so much of the note described, as is the amount of the real debt due from Stephen Wheeler to George Wheeler, the defendant, and the interest thereon; and that it be declared void as to the residue.

The other judges were of the same opinion, except SHERMAN, J., who gave no opinion, having been of counsel in the cause. Decree for the plaintiff in part.

A DEED WILL NOT BE TREATED AS VOID in its entirety because it is given to secure debts of which some are legally void as to other creditors, if there be no actual fraud in the transaction: North v. Belden, 13 Conn. 383; Mix v. Cowles, 20 Id. 426.

AN ABSOLUTE NOTE WHOSE AMOUNT REPRESENTS both the debt of the maker to the payee and the amount of the contingent liability of the latter for the former, will be void as to creditors as to this latter portion: Ayres v. Husted, 15 Conn. 512.

In the same manner, a mortgage given to secure such note would be void: but in the case of the mortgage, besides the equitable principle that would apply in the case of the note, it would be void as in contravention of the record ing laws, which were intended to afford the public an opportunity of obtaining correct information of the liens on property: Bramhall v. Flood, 41 Conn. 71; and the policy of which in consequence demands that a mortgage should give reasonable notice of the debt it is intended to secure; but in Merrills v. Swift, 18 Id. 257, a divided court held, that a description in the mortgage of the indebtedness as 'one thousand five hundred dollars, which I am indebted to B., on book and by several notes, the exact date and amount not recollected, but amounting in the whole to the sum of one thousand five hundred dollars or thereabouts," was sufficient where it was shown that the actual indebtedness to B. was over one thousand five hundred dollars. The principle which will allow a deed to stand as security for one part of a demand and reject it as to another, is of exclusive equitable cognizance. In law, the deed would be rejected or sustained as a whole. Thus where property was assigned to A. by B., to be disposed of by him, raising a fund wherewith to protect himself against liability on certain claims on which he was B.'s surety, and also to discharge B.'s indebtedness to him, any surplus remaining over to be paid to B., an action of replevin brought by A. against B.'s creditors, who had attached the property, was sustained: St. John v. Camp, 17 Conn. 230, citing the principal case. The case is also cited in Harvey v. Mix, 24 Id. 425; Bishop v. Warner, 19 Id. 466.

WHERE TRANSFer is Made in Discharge of a debt of property of much greater value than the amount of the debt, the conveyance will be avoided in favor of other creditors, to the extent of this excess in value: Bailey v. Kennedy, 29 Am. Dec. 351.

YALE V. YALE.

[13 CONNECTICUT, 185.]

TRANSFER OF PARTNERSHIP PROPERTY IN SATISFACTION of a private debt of one of the firm, after the failure of the partnership, is fraudulent and void as to the partnership creditors.

TROVER for Conversion of a horse.

Plaintiff claimed the horse

by virtue of a bill of sale executed to her by her son, Edwin Yale, of the firm of Yale & Henshaw. This bill of sale was executed after the failure of the firm, which was much in debt, amongst others, to defendant. The transfer was intended by Yale in part payment of a note, held by his mother against him. It clearly appeared, however, from the evidence, that plaintiff refused to indorse the consideration expressed in the bill of sale upon the note, and that though she had taken the horse, she constantly repudiated the idea that she had bought him, at the same time expressing her willingness to take another horse that belonged to the partnership. On account of this repudiation of the sale, on the part of plaintiff, the horse was finally transferred to defendant, to whom the firm was, as we have said, heavily indebted. The horse having subsequently come into defendant's possession, this action was brought.

Baldwin and Kimberly, in support of the motion.

B. Beach and R. I. Ingersoll, contra.

SHERMAN, J. This court will not set aside a verdict as against evidence, unless the mistake of the jury is very manifest. In this case, the judge charged, correctly, that, on failure of the firm, an appropriation of the joint property, by one partner, to pay his individual debt, would be fraudulent and void as against the partnership creditors. That the horse in question was the property of the firm, and that they had become insolvent, was admitted. Whether the sale claimed by the plaintiff, if made at all, was void as being within this rule, was submitted, as a question of fact, to the jury. As the only evidence that any debt at all was due to the plaintiff, proved it to be the debt of Edwin R. Yale, and not of the copartnership; and as the testimony that the defendant was the creditor of the firm, and, as such, took a bill of sale of the horse, seems not to be questioned, it was the duty of the jury to return a verdict for the defendant, unless they found that he had assented to the sale to the plaintiff, with knowledge that she was to apply it on a claim against one partner only. Of such knowledge there is no evidence. He