56 N.J. Eq. 102 | New York Court of Chancery | 1897
I do not find it necessary to determine whether, under the circumstances, the payment of the interest by check to the order of the executor and executrix, and handing it in good time to the attorney of one of them, was a good payment or not, for the reason that I think the complainant is entitled to succeed on the other ground taken, viz., the non-payment of the taxes. I think the excuse set up at the hearing for the delay in that payment is quite insufficient, and fails to bring the case within the principle
The principle governing courts of equity in these cases is fully stated by Chancellor Williamson in Baldwin v. Van Vorst, 2 Stock. 581, and agairl by Chancellor Zabriskie in Spring v. Fisk, 6 C. E. Gr. 175. It has been usual to speak of this class of cases as forfeitures proper, such as when a party, by reason of the failure to pay a small sum, is subjected to the loss of a much larger one, or of land of much greater value — for instance, the amount of the real debt mentioned in the Condition of a bond, or where the title to land is lost at law by reason of the nonpayment of a sum of money either advanced by way of loan or due upon a contract to sell land. Against such failures equity relieves, almost as a matter of course. But here, as pointed out by Chancellor Zabriskie in Spring v. Fisk, supra, those elements do not exist. Nothing is lost except the right to a credit, and that depends upon a contractual condition. At the present rate of interest, the right to extend a five per cent, loan can hardly be considered of much value.
It is well settled that mere forgetfulness or oversight will not excuse. De Groot v. McCotter, 4 C. E. Gr. 531 (Court of Appeals); Spring v. Fisk, supra; Voorhis v. Murphy, 11 C. E. Gr. 434; Neale v. Albertson, 12 Stew. Eq. 382 (at p. 386). In the cases in which the courts have relieved there has been either some inability on the part of the mortgagor to find the mortgagee for the purpose of payment, or some waiver on the part of the mortgagee of prompt payment, or something in the nature of a contract to vary the place and time of payment.
There is here no room for mistake or misapprehension as to when the tax matured, or to whom it should be paid. The corporation defendant is stated to be an association of a few rich gentlemen who purchased the mortgaged premises on speculation. They produced a little income, which was collected by one of their number, a Mr. Blakeley, living at Rahway, and it was his practice and duty to pay these taxes. This, in the present instance, he neglected to do, and .no reason or excuse is given for such neglect. The tax bills were sent in December, 1896,
As to the willingness and desire of the majority of the legatees of Arkenburgh to have this loan extended, I think I cannot here take that into consideration. The complainant is, undoubtedly, the acting executor. As matters stood at the hearing, the estate has but a small interest in the mortgage. Much the greater part belongs to the Kinseys. The complainant is, in my judgment, properly treating them as having a controlling voice in the matter of its enforcement. His failure to do so might produce serious results for the Arkenburgh estate.
I think the complainant is entitled to a decree.
