Supreme court of the United States. No. 135. The United States, appellants, vs. John A. Sutter. Appeal from the District court U.S. for the Northern district of California.

$90 The United States vs. Sutter.
And this defendant, for further answer, denies that said mortgage
was properly, orderly executed, acknowledged or recorded, or exe
cuted or acknowledged so as to entitle it to record.
1405 And, for further answer, this defendant says that the said
notes and the said mortgage were given without any consideration, passing from said plaintiff to said defendant, McCullough,
and that the same were made and executed in order to cover up the
property of said defendant, McCullough, and for the use and benefit
of said McCullough, and not because of any indebtedness by said
McCullough to said plaintiff, or on account of any consideration passing thereof; and this defendant charges that the same were executed
by said McCullough, and taken and accepted by said plaintiff, for the
benefit and protection of said McCullough against his creditors, and
upon the understanding that said Hackney was to have no interest
therein. And this defendant further says that the same were, and
are now, so held by said Hackney for the use and benefit of said McCullough, and not as the owner thereof.
And this defendant, for further answer, says that after the
1406 execution of the said-notes and mortgages so, as aforesaid, made
for the benefit of said McCullough, to wit, some time about
the month of June, A. D. 1851, the said McCullough sold to this defendant one of the said undivided three-fourths of said lands so mortgaged, being an undivided one-fourth of the whole tract, for a valuable consideration, and thereafter, in the year A. D. 1852, gave to
this defendant therefor a good and sufficient warrantee deed for such
undivided one-fourth, which was duly executed, acknowledged, and
recorded in the Yuba county recorder's office, as will more fully appear by reference to the same, whereby, and by reason whereof, this
defendant, in equity and good conscience, took the said undivided onefourth of said lands, free and discharged of and from said mortgage,
of and from any and all liens created thereby; and, therefore, this
defendant prays that he have judgment denying the enforcement of
said mortgage against the said undivided one-fourth of this defendant.
1407 And this defendant, for further answer, says that it is unequitable and unjust to enforce the collection of said notes and
mortgage by the sale of the said undivided one-fourth so, as aforesaid, claimed by this defendant, because he says that the said lands
described in said complaint were at the time of the execution of said
mortgage subject and liable to a lien for the original purchase-money,
upon the purchase thereof by said Hackney and McCullough from
John A. Sutter, which amounted to the sum of about $2,300.
That the said Hackney and McCullough purchased said premises
ot said Sutter, and gave a note for the purchase-money thereof, and
that before the payment of said purchase-money the said Hackney
sold his undivided one-half interest therein to said McCullough and
Josiah Roop, deceased; and that afterwards, in June, A. D. 1851, the
said McCullough sold the one undivided fourth of said premises,
being the one-fourth so purchased of said Hackney, to this defendant.
And this defendant further says that after the sales afore1408 said, the said John A. Sutter prosecuted the said Hackney