4 Johns. Ch. 534 | New York Court of Chancery | 1820
The sale of the whole of the mortgaged premises was indispensable in this case, because they were not capable of being sold in parcels, or of being divided, without manifest injury to all the parties concerned. When the whole premises are thus necessarily sold, it is the direction of the statute, (1 N. R. L. 490.) that the Court apply the proceeds of the sale not only in payment of the interest, instalment, or portion due, but towards payment of the whole, or residue of the demand, which hath not become due, or payable, provided the same bears interest. But this provision is made for the necessity of the case, and more than is due is not to be' raised out of the mortgaged premises, when that necessity does not exist. If the mortgagor; or the party holding the equity of redemption, comes before the sale, and brings in the amount due, with costs, there is • no justice or equity in suffering the sale to proceed. It has been the practice of the Court, since I have sat here, to stay the sale in such cases, and to let the decree of foreclosure remain good to enforce payment of the future interest and instalments, as they may respectively become due. When such an application was made, before answer, in Lansing v. Capron, (1 Johns. Ch. Rep. 617.) I required, as a condition of the rule, a decree of foreclosure to be entered by way of security, and to save the trouble and expense of a new suit; but this is the utmost length to which any proceeding in the cause has been carried, after payment of the amount due, with the costs.
Though there be a regular decree of sale in this casé, there can be no doubt of an adequate power in the Court, in its discretion, to regulate the process of execution under ' the decree. To sell, after satisfaction of the decree, would
A Court of law, after judgment and execution for the entire debt, will relieve the defendant, on paying the instalment due, but will retain the judgment as a security for the future instalments. (Judd v. Evans, 6 Term, Rep. 399.) This is an equitable construction of the statute of 4 Anne ; and surely this Court will not turn a deaf ear to the equity of the case, and adopt a more than common law rigour.
But the petition states, that the petitioner is not only a mortgagee in trust, but a surety for the mortgagor, and that the mortgaged premises are in a state of injury and decay, from the action of storms, and have thereby become a precarious security. I do not perceive that this circumstance gives him any right or title, in equity, to have the premises sold for a debt not due. The security was taken with knowledge of the situation and character of the property, and of the risks to which it was exposed. It does not belong to the Court to give a party better security than he elected to take, where there has been no fraud or mistake, nor any abuse or waste of the subject. I am not informed that there exists any precedent of a bill quia timet,- adapted to such a case.
The question on this subject, so often raised in the civil law, assumed the fact, that the principal debtor was in default ; Si diu in solutione reus cessavit; and when it is added, aut eerie bona sua dissipavit, the reference was still to the case in which the debtor had failed to pay, and was, also, wasting his goods. I apprehend, this must be the true con-, stvuction; for the only question raised by Marcellus, in the text referred to, (Dig. 17. 1. 38. 1.) was, whether the surety could seek indemnity before he had himself paid, fide jussor an et prius, quam solvat, agere possit, ut liberetur ? It was a very equitable provision in the civil law, to afford a remedy to the surety when the debtor neglected to pay, though the creditor had not required payment, and though the surety had not actually ádvanced the debt; but it would not have been very just to have 'given the surety an action for indemnity against the debtor, before the latter was in default, and when such a previous claim made no part of the original contract. The debtor, as the civil law truly observes, in another place, (Dig. lib. 17. 1. 22. 1.) has an interest not to be compelled to pay before the day ; and yet, I perceive, that several writers on the civil law (Domat. part 1. b. 3. tit. 4. sec. 3. n. 3. Wood’s Institutes of the Civil Law, p.227. Brown’s Lectures on the Civil Law, vol. L 362.)
Pothier says, (ubi sup. n. 442.) that if the obligation to which the surety has acceded, must, from its nature, exist a long time, as if he was surety for the due execution of a trust, he cannot, within the time, sue the principal debtor or trustee for his discharge, for Tie knew, or ought to have known, the nature of the obligation he contracted. Though where he is surety, indefinitely, as for payment of an annuity, he may, after a long time, as, say ten years, demand that the principal debtor liberate him, by redeeming the annuity.
I cannot make it a condition of the order, staying the sale, that the defendant should repair the dam. This would be a very extraordinary and dangerous interference with the exeicise of the rights of a mortgagor, and is, in practice, unknown. Suppose, the most valuable part of the mortgaged premises should consist of buildings, and they should accidentally be destroyed by fire, can the mortgagor be compelled immediately to rebuild ? Is it not rather incumbent on the mortgagee, or the surety, to provide for such a case in the contract, or by insurance ? It would bring distress and ruin on a mortgagor, to charge him with burdens and duties, not within the contemplation of his contract, and, therefore, not within his provident foresight. How far the Court could, or ought to interfere, in a case of negligent, or permissive waste, rapidly impairing the security, is a question which need not now be discussed; for the relief, if any, would not be by directing the mortgaged premises to be sold for a debt not due, or, under a decree of sale, te. give an order to repair, or a reference to assess damages, The necessity of any interference, of any kind, in cases of mortgages, is exceedingly diminished by the consideration, that the mortgagee can, if he pleases, relieve himself, by obtaining possession of the land, and make, at his own expense, the requisite repairs, for which he would be allow
Motion denied, with costs.
There must be some misapprehension of the meaning of the text, or the part of these writers, or the opinion of Marcellus, (Dig. lib. 17. tit. 1. 38.) to which they refer, is irreconcilable with principles laid down in. other parts of the Digest. In the case stated in the text, Tiiius was part owner of a house, which, by his consent, was mortgaged to the creditor of his natural son Mavius. Mavius died, and the question which
the civil Zuro, a surety cannot sue the principal debt- or for his indemnity or discharge, before the term of payment fiven to the ebtor, by his contract with the creditor, has expired; though the suretymay, after the time of payment has elapsed, sue the debtor for his indemnity, in certain case», before he has himself paid the debt.