Noah Haynes Swayne

“ The mortgage was upon the same property as the prior mortgage, and none other. They were intended to be for the amount due upon the former securities. They were for too much, as we now adjudge the law of Utah to be. In the view of equity they are as if they had been taken for the proper amount. The excess is a nullity. It has no efficacy or validity for any purpose. The bankrupt's estate, to be administered by his assignee, is just what it would have been if the new notes and mortgage had never existed. ”

“ This is an ordinary exercise of the jurisdiction of such tribunals. 'It is a rule in equity that an incumbrance shall be kept alive or considered extinguished as shall most advance the justice of the case.' [7]
The application of this principle occurs most frequently in cases of usury. It is well settled that if a security founded upon a prior one be fatally tainted with that vice, and the prior one were free from it but given up and cancelled, and the latter one thereafter be adjudged void, the prior one will be revived, and may be enforced as if the latter one had not been given. ”

“ Among them, and the cardinal one, is that the security should be given by the bankrupt within the time specified, 'with the view of giving a preference to a creditor or person having a claim against him.' Are the securities here in question liable to this objection? The facts must give the answer, and they are undisputed. The several securities upon which the notes and mortgage attacked were founded, and for which the later ones were substituted, were given not only more than four months, but more than five years, before the filing of the petition in bankruptcy. ”