30 N.J. Eq. 24 | New York Court of Chancery | 1878
The complainant, on the 28th of April, 1875, gave to the defendant his bond of that date, secured by his mortgage upon land in Paterson, for the payment of $12,786.66 in five years from that time, with interest thereon, payable semiannually on the 28th of October and April in each year, at the rate of seven per cent, per annum. The bond contained a special condition, which, according to the statements of the declaration in the suit at law on the bond, was, that if any default be made in the payment of the interest or any part thereof on the day when the same was made payable, and should the same remain unpaid and in arrear for the space of thirty days, then the principal sum, with all arrearage of interest thereon, should, at the option of the defendant obligee, become and be due and payable immediately thereafter, although the time limited in the bond might not have expired. The interest which fell due on the 28th of October, 1877, was not paid then, nor within thirty days thereafter. According to the statements of the
The defendant has answered the bill, and now moves to dissolve the injunction on the bill and answer. The trans
Equity will, for sufficient cause, relieve against forfeiture in such cases as this. Baldwin v. Van Vorst, 2 Stock. 577; Martin v. Melville, 3 Stock. 222; DeGroot v. McCotter, 4 C. E. Gr. 531; Sire v. Wightman, 10 C. E. Gr. 102. In the cases of Baldwin v. Van Vorst, ubi supra, and Spring v. Fisk, 6 C. E. Gr. 175, cited by the defendant’s counsel, relief was denied because there was no equitable ground for it. In the former case the court'said: “The defendant offers no excuse for his default, not even that of negligence, or of his inability to raise the money at the day. Eor anything appearing to the contrary, the default was willful, and without excuse, and intended to harass and inconvenience the complainant by withholding from him his interest-money. The defendant made no amends for his default until he was compelled to do so by the complainant’s exhibiting his bill in this court.” In Spring v. Fisk, the chancellor says : “ The excuse in this case is not accident, or mistake, or even inadvertence, in the sense in which that term is used in such case in equity, but it is mere negligence.” And, again, he says: “I do not
On the case as it stands, the motion to dissolve cannot prevail. It will be denied, with costs.