50 N.J. Eq. 143 | New York Court of Chancery | 1892
The principal object of this suit is to procure a decree directing the defendant to surrender a bond for cancellation. Preliminary to the main relief asked, an injunction was granted, on the
The bond, which the complainant seeks to have surrendered, was made by his téstator, Nelson Chase, to William Dunning, on the 1st day of December, 1877, for $10,000, payable six months' after date. Its payment was secured by a mortgage, executed by Chase and his wife, on Chase’s undivided third of a tract of land situate on the corner of Broadway and Liberty street, in the city of New York. The bond and mortgage were given in part to-protect Dunning against the liability he had incurred in endorsing two notes of $2,600 each for Chase. That this is the fact appears by the evidence of Dunning, given in a suit, instituted in the Supreme Court of New York, for the partition of the land situate on the corner of Broadway and Liberty street and other lands. In testifying in that suit, in April, 1881, he said that the mortgage above mentioned had been made, to securé him for the endorsement of two notes, of $2,600 each, and some other considerations which were private between Mr. Chase and himself, but, so far as he was concerned, he would be willing, when the notes were out of the way, to relinquish the mortgage. He subsequently said : “ I cancel the mortgage when the notes are out of the way.” The lands sought to be partitioned were subsequently sold and conveyed under an order of the court in which» the partition suit was pending, and the proofs show—in fact it is-undisputed—that the two notes endorsed by Dunning were paid out of Chase’s share of the prooeeds of sale. This is the complainant’s case, except it. is also shown, and undisputed, that "Chase died in March, 1890; that the defendant is his widow and a daughter of "William Dunning, the obligee named in "the bond
The defendant denies that the payment of the bond assigned to her was secured by a mortgage, or that her bond is the bond which accompanied the mortgage made by Chase to Dunning on the 1st day of December, 1877. She says that though her bond is identical in parties, date, amount and time of payment with the bond recited in and accompanying the mortgage, it is, nevertheless, an entirely different and distinct instrument; or, stated in another form, her claim is, that Chase gave two bonds on the same day to the same person, each for the same sum and maturing at precisely the same time, the payment of one of which was secured by a mortgage, and the other not, and that she holds the one which was not secured. Her claim is supported by the evidence of her father. He was examined as a witness, de bene-esse, in the action at law on. the 24th of February, 1891, and again on the 16th of April ensuing, and died in the month of June following. The defendant has annexed a copy of his deposition to her answer. It is undisputed, that he testified, in giving his evidence in the action at law, that the payment of the bond in suit was not secured by a mortgage, nor did it accompany a mortgage; that it was given as evidence of the amount due to him for services rendered to the obligor extending over a period of twelve years; that he repeatedly requested payment, and that the obligor on each occasion promised to pay when he had funds, but that nothing had been paid. If his evidence is true, the bond is unquestionably a valid and existing obligation. His evidence shows, moreover, that the complainant’s bill rests on an entirely false
With the material facts of the case in this condition, it is manifest, as I think, that the complainant has no right, at least at this time, to have the litigation respecting the bond withdrawn from the court in which the defendant’s action is pending and transferred to this court. There can be ho doubt, however, that this court has power, in a proper case, to decree that a bond or other instrument shall be surrendered for cancellation, even though a successful defence may be made at law against a recovery on it. The rule which controls the action of the court in such cases, as stated by Chancellor Williamson, in Cornish v. Bryan, 2 Stock. 146, 151, is this: “The mere fact that the ground upon which the jurisdiction of this court is invoked may avail the party in an action at law, and constitutes a valid defence by plea or otherwise, is not a sound objection to the court’s exercising this power. If a party holds an obligation which ought to be canceled, and persists in holding it for the purpose of harassing the obligor with a suit, he ought not to be permitted to select his own place, time and circumstances for such prosecution. Where a suit at law has been commenced, and the defence at law is complete, then that is a good objection for this court’s refusing to change the forum of the litigation. Where, too, the defence is of a character plain and palpable, and within the command of the party at any time, this court ought not to encourage a resort to an expensive litigation in a court of equity. In all cases the court must exercise a sound discretion, and be regulated in its action by the propriety of the particular case before it.” The other cases in this state in which the same power invoked here has either been granted or denied, are Metler’s Admrs. v. Metler, 3 C. E. Gr. 271; S. C. on appeal, 4 C. E. Gr. 457; Smith v. Smith’s Admr., 3 Stew. Eq. 567; Ellicott v. Chamberlin, 10 Stew. Eq. 470; S. C. on appeal, 11 Stew. Eq. 604. The case
No argument is required to show that this principle must control the decision of this case. The complainant’s claim is that the bond in suit should be surrendered for cancellation because it has been paid, and he shows, clearly and satisfactorily, that a bond, identical in every point with the bond in suit, and, accompanied by a mortgage, was, years ago, paid out of the sale of the mortgaged premises. The payment of that, bond, so far as it was intended as a security or protection to the obligee against his liability as the endorser of two notes, is an undisputed fact.
There is another reason why this court should not take jurisdiction of this litigation. The defendant has taken a part of her evidence in the action at law. She has a right to use that evidence in that suit, but not in this. It was not taken in this suit, and, indeed, could not have been, for the witness examined in> the suit at law died more than two months before this suit was brought. His evidence cannot, therefore, be used. in this suit,, except by the consent of the complainant or pursuant to an order
The injunction must be dissolved. Whether the bill should be retained to await the determination of the action at law, in order that the complainant may then, if successful in that suit, apply on supplemental bill for a decree directing the surrender of the bond, is a question which has not been fully considered. That is the course which appears to have been pursued in Murshaw v. Jordon, 3 Bro. Ch. C. 18 n.