Badeau v. Rogers & Secord
2 Paige Ch. 209
New York Court of Chancery
1830
Check Treatment
The Chancellor.

: The object of a bill of interpleader is to protect the complainant where he stands in the situation of a stake holder, not knowing to whom- to pay the money or to deliver the property in his hands -f and whére a recov- ‘ ery against him at the suit of one party might not be a protection against the claim' made by the other.. Such does not appear to have been the situation of the complainant at the time this bill was filed. All the'present parties were then before the court in the suit commenced by Rogers' in relation to the alleged fraud in the assignment; and the complainant and Secord were also before this court in the suit commenced by ihe latter for the foreclosure of the mortgage. Without reference to the offer to indemnify the complainant against the claim of Rogers, there was therefore no necessity for filing this bill. If the complainant had’ presented a‘ . petition to the court in those two suits,p there can be no- doubt *211that the chancellor would have authorized him to pay the money into court, to abide the event of the litigation between Rogers and Secord, and would have stayed all further proceedings against him. (Lowe v. Richardson, 3 Mad. R. 277.) If Rogers had answered in this suit and claimed the money, and had insisted on these facts, I should have thought it my duty to dismiss this bill as unnessarily and improperly filed. But by suffering it to be taken as confessed, Rogers admits it to be properly filed as against him, and that he had made an unjust claim upon the fund. The complainant is therefore entitled to an injunction or order for a perpetual stay of proceedings on the part of Rogers against him, and to recover against the latter his costs in this suit to be taxed. Under the circumstances of this case, I do not think the complainant is entitled to claim his costs out of the fund in court. That belongs to Secord by the neglect of Rogers to appear and claim it in this suit; and I also think the complainant ought to pay Secord the costs in the suit brought to foreclose the mortgage which had been commenced previous to the time the bill in this cause was filed. On the receipt of those costs, Secord must cancel the mortgage on record. He will then be entitled to the fund in court; and Rogers must pay to him his costs in this suit to be taxed. On a bill of interpleader rightfully and necessarily filed, the complainant is entitled to his costs out of the fund which is the subject 'of the suit; and he is not obliged to take his chance of getting them from the defendant against whose claim the court eventually decides. But the circumstances of this case do not bring it within the reasons on which that rule is founded.