108 Mass. 248 | Mass. | 1871
The equity jurisdiction of this court is created and limited by statute. The statutes provide that the court may hear and determine in equity, in cases where the parties have not a plain, adequate and complete remedy at the common law, “ suits for the redemption of mortgages, or to foreclose the same; ” and also, after enumerating various other heads of jurisdiction which do not apply to this case, that the court “ shall have full equity jurisdiction, according to the usage and practice of courts of equity, in all other cases where there is not a plain, adequate and complete remedy at law.” Gen. Sts. o. 113, § 2.
The restrictive clause in the statute limits our jurisdiction to cases where the parties have not a plain, adequate and complete remedy at law. In considering the question, therefore, whether any particular suit is within the equity jurisdiction of the court,
We will first consider the question as to our jurisdiction of the bill to foreclose. The statutes provide a simple and efficacious mode of foreclosing chattel mortgages. The mortgagee, after a breach of the condition, may give the mortgagor notice of his intention to foreclose, which notice, with an affidavit of service, is to be recorded wherever the mortgage is recorded; and “ if the money to be paid, or other thing to be done, is not paid or performed, or tender thereof made, within sixty days after such notice is so recorded, the right to redeem shall be foreclosed.” Gen, Sts. e. 151, §§ 6-8. If the mortgagee follows the steps pointed out by the statute, at the expiration of sixty days after the notice is recorded, unless there is a payment or tender of the debt due, the chattels mortgaged become his absolute property, and he may sell them and apply the proceeds to the payment of his debt. If they are not sufficient to pay the debt, he may have a suit at common law against the mortgagor for the balance. It is clear that in most, if not all cases, these provisions furnish a plain, adequate and complete remedy for the mortgagee.
We do not deem it necessary to decide whether under any circumstances a bill to foreclose a chattel mortgage can be sustained under our statutes. In Lowell v. Daniels, 2 Cush. 234, a bill to foreclose a mortgage of real estate was dismissed because the plaintiff had an adequate remedy at law. See Holbrook v. Bliss, 9 Allen, 69; Shaw v. Gray, 23 Maine, 174. If in any case a suit in equity for foreclosure can be sustained on the ground that the remedy furnished by the statute is inadequate, the bill of the mortgagees in this suit does not state such a case.
These mortgagors, on February 20, 1866, executed and delivered the written instrument, of which a copy is annexed to the bill, and as a p9<rt of the same transaction made an assignment, absolute in form, of the patent rights, which was duly recorded. The two instruments, construed together, were a mortgage of the patent rights, and of the patterns and drafts therein described
The remaining question is, whether the mortgagors can maintain their bill to redeem. As in the case we have just considered, we must first inquire whether they have a plain, adequate and complete remedy at law. The statutes provide that, when there is a breach of the condition, the mortgagor, or any person claiming under him, may redeem at any time before foreclosure, and that “ the person entitled to redeem shall pay or tender to the mortgagee, or person holding under him, the sum due on the mortgage, or perform or offer performance of the thing to be done, and shall pay all reasonable and lawful charges and expenses incurred in the care and custody of the property, or otherwise arising from the mortgage; and if upon such payment or performance, or tender thereof, the property is not forthwith restored, the person entitled to redeem may recover it in an action
In the first place, the property mortgaged is of such a nature that the statute provisions cannot apply to it. It consists in part of an interest in patents, which is incorporeal property and cannot be transferred by delivery. An action of replevin is not applicable to it, and the mortgagors can only be reinstated in the possession of the property by a reconveyance. They are entitled to the possession and control of the mortgaged property upon paying the mortgage debt, and it is clear that they cannot obtain, fully and adequately, their rights in this respect, by means of the remedies furnished by the common law.
Another feature of the mortgage in suit is, that it is impossible for the mortgagors to ascertain the amount due on the mortgage, until the mortgagees render an account of their disbursements and expenses incurred under the contract. The bill alleges that they refuse to render such an account. By the statutes we have cited, the mortgagors, in order to redeem their property, must pay or tender the sum due on the mortgage. They are required to ascertain the amount due, and at their peril to tender a sufficient sum. It is plain that, where it is impossible for them to ascertain the sum which they ought to tender, the remedies provided by the statute do not afford them that full relief which they were intended to, and in most cases do, afford to mortgagors.
For these reasons, therefore, we are of opinion that, in the case at bar, the mortgagors have not a plain, adequate and complete remedy at the common law. This being so, we think it follows
It is true, as urged by the counsel for the mortgagees, that a suit to redeem must necessarily, while it is pending, suspend the foreclosure under the statute; but upon a just construction of the several statutes we are satisfied that it was the intention of the legislature, in order more fully to protect the rights of all parties, to give the mortgagor the right to a suit in equity, with all its incidents, if the statute remedy fails of its purpose and does not furnish him adequate and complete relief.
In the first case the demurrer is sustained, and the bill dis missed, with costs; in the second case, the demurrer is overruled.
