Crumbaugh v. Smock

1 Blackf. 305 | Ind. | 1824

Scott, J.

It is alleged in objection to this decree, that the relief prayed for existed at law and not in equity; and that the-.prayer for general relief did not authorize a decree for a sale; of the mortgaged premises. The transaction in question may be considered as a conditional transfer of the defendant’s estate, become absolute on failure of payment of the 200 dollars and interest; or it may be considered in the nature of a mortgage— a mere security for the payment of the borrowed money. Add. R. 357. The complainant considered it as a security in the nature of a mortgage, and set it out so in his bill; the defendant, by his demurrer, admitted this construction; and this indeed seems to be the most natural view of the contract ⁽²⁾. Considering the assignment, then, as a security in the nature of a mortgage, the relief was properly sought for on the chancery side of the Court.

JYelson, for the plaintiff. Mariden, for the defendant.,

The objection that the relief decreed is inconsistent with the special relief prayed for in the bill, is of no validity. The Court is not confined to the particular relief prayed for. On a prayer for general relief, the Court will grant such relief as is warranted by the case made out in the bill ⁽³⁾. Mitf. Pl. 38. — 2 Atlf. 141. — Bart. Eq. 40, 41.

Per Curiam.

The decree is affirmed, with 5 per cent, damages and costs.

(2) Although a conveyance be absolute on its face, yet if the grantee agree by deed to re-convey on being repaid his purchase-money within a certain period, the conveyance is considered a mortgage, and redeemable. Manlove v. Ball, 2 Vern. 84. — 1 Madd. 2d ed. 517. So if a deed, absolute on its face, be shown to have been intended merely as a security for a debt, it will be considered a mortgage. Dey v. Dunham, 2 Johns. C. R. 189.— Strong v. Stewart, 4 ib. 167. — James v. Johnson, 6 ib. 417. — Henry v. Davis, 7 ib. 40.

(3) It is said, that a prayer for general relief was formerly thought sufficient ; but that vow particular relief is prayed, and no relief inconsistent with that is in general granted under the general prayer. 2 Madd. 171. A different ¡relief, however, from that prayed for, was given in Durant v. Durant, 1 Cox, 58, cited in note, 2 Madd. supra. In New-York the doctrine is, as stated in the text, that though the bill contain, as usual, a prayer for general relief, and also for specific relief, the plaintiff may have other specific relief, provided ifc be consistent with the case made by the bill. Wilkin v. Wilkin, 1. Johns. C. R. 111, 117.