¶1In this case the court below instructed the jury, in substance, that if the appellant, then plaintiff, purchased the goods described in the declaration, with a full knowledge of the mortgage to the defendant, and with the intent to cheat and defraud him of his lien, the sale was void, as to the mortgagee.
¶2This we hold to be the law. The mortgage was good, as against Myers, the mortgagor, without being recorded. If then, the appellant purchased the goods of Myers with the knowledge of the mortgage, and for the purpose and with the intent to enable Myers to put the money in his own pocket, and cheat the mortgagee, that was such a fraud in fact as to avoid the sale to appellant. It cannot be tolerated, that a party, thus acting, should be permitted to enjoy the fruits of such conduct.
¶3We do not say, that the mere knowledge of the existence of a mortgage unrecorded would make the purchase from the mortgagor a fraud in law, where there is no intent manifested by such purchaser, to commit a fraud in fact by enabling the mortgagor to pocket the avails, and so cheat the mortgagee.
¶4When a purchase from a mortgagor is bona fide, and without any intent to cheat, the case might be different. Here the facts show a contrivance and a design by the appellant, knowing of the existence of the mortgage in collusion with the mortgagor to cheat the mortgagee. The parties cannot receive our aid in furtherance of such intention, nor do we think the law requires it. Good faith and absence of fraudulent intent must characterize all contracts.
¶5Upon the other point, the appellant had mixed up his own goods with the goods mortgaged, and he was notified to select his, and take them away, which he refused to do. The appellee had a right to take his own goods, and if he took some, not his property, they being so confounded with his own that he could not distinguish them, it would be fraud to charge him in trespass, however he might be liable in trover. On the whole case we think justice is with the appellee, and we accordingly affirm the judgment. ;
¶6Judgment affirmed.