44 N.J. Eq. 109 | New York Court of Chancery | 1888
There were two mortgages on the lands of the defendant, Mrs.
The attachment was pressed, the declaration was filed, bond was given, pleas were filed; the proceedings upon the foreclosure of the $11,000 mortgage were pressed to a final determination in the court of errors and appeals, in which court it was decided that the said $11,000 mortgage was void. The decree final was entered in the cause on the 29th day of May, 1884. On the 31st day of May the attachment suit was discontinued. Out of these proceedings and this conduct of the mortgagee, Baldwin, springs the question which I am now called upon to consider. From these facts it is insisted that Baldwin was liable as mort
For the sake of the argument it will be admitted that Baldwin was the owner of both mortgagages, and is now really the owner of the mortgage being foreclosed in this suit. Let it also be admitted that the possession, to the extent that there was actual possession of said mortgaged premises, was the possession of Baldwin and not of the sheriff, nor of the law. These admissions present the case, of course, most strongly in favor of the defendants, Flaggs, and enable us to look at the law, as I understand it, in New Jersey as well as elsewhere. I think that in order to charge a mortgagee who is in possession of mortgaged premises, with rents and profits, and to hold him responsible for the proper management of the estate in a suit under the bill to foreclose the mortgage, it must appear that he is in possession under and by virtue of the mortgage against which such rents and profits are sought to be set off or recouped. This relation does not exist, nor can the rights which flow therefrom be enforced unless it appears that his possession is under the mortgage. The case of Onderdonk v. Gray, 4 C. E. Gr. 65, seems to be conclusive authority to this effect, and this view is sustained, I think, by the reasoning in Russell v. Ely, 2 Black (U. S.) 575; and in Bennett v. Austin, 81 N. Y. 308; and in Madison Ave. Baptist Church v. Oliver St. Baptist Church, 73 N. Y. 82.
In the case before me, if Baldwin be the real actor, he was not pursuing any claim under the mortgage which is now being foreclosed. And in the attachment proceedings, he was not proceeding upon the mortgage, nor by virtue of any power or right therein given or existing, but by virtue of and under the bond which had been given by Mrs. Flagg, totally separate from
Again, as I look at this case, and the law which seems to be my guide, I cannot come to the conclusion that if what was done under the attachment and the possession was done in the name of and for Baldwin, that it can be said he had any lawful or rightful possession as against the mortgagor. As I have said, the claim was not under the mortgage, but under the attachment upon the bond. Baldwin could not possibly have made any resistance to the mortgagor had the latter demanded possession. Had the mortgagor actually put any one else in possession, Baldwin would have been powerless. In such a case, Baldwin
Although what I have said disposes of the merits of the case, another question of great importance presents itself. This arises from the fact that parties, by the law, are permitted to be witnesses, and not only in their own behalf, but may be called by the adversary. This suit was instituted in the name of Davis, and during its progress the defendant desired to examine him with respect to his interest in the mortgage, and the rights or claims of Baldwin, his alleged assignor. The counsel for Davis made every reasonable and proper effort to have him present, but, the residence of Davis being out of the state, it was impossible for the court, by the ordinary process of the court, to compel his attendance. Repeated delays took place, in order that Mr. Davis might be accommodated, and that his testimony might in some way be produced and presented in the cause. However, all efforts failing, counsel for the defendant insisted that it was
But, instead of dismissing his bill, as I have intimated, it was announced that the court would assume the allegation that Baldwin was the real owner of the bond and mortgage in this suit as a fáct, and would deal with the case accordingly. But, although I have given the defendants the benefit ef this allegation, I find myself obliged to conclude that they have not made good their claim to charge Davis with rents and profits and for waste, as a mortgagee in possession. The petitioners are entitled to the costs of the petition and the order opening the decree, because the court decided that they had a right to be heard, but all other costs they are chargeable with, the same as though they had made their defence upon their answer before final decree and had failed. I will so advise.
Note. — It has been held that, although a complainant is in contempt, the defendant cannot, on that account, have the bill dismissed, Ricketts v. Mornington, 7 Sim. 200; Gould v. Twine, 22 W. R. 398; or prevent complainant’s dismissing it, Smith v. Smith, 2 Blackf. 232; or oppose its amendment, Chatterton v. Thomas, 86 L. J. Ch. 592; or refuse to produce deeds relating to the matters in issue and admitted by defendant’s answer to be in his possession, Plumbe v. Plumbe, 3 Y. & C. Exch. 622; or prevent a replication being filed, Story v. National Ins. Soc. 2 N. R. 351; or prevent complainant’s moving for a stay of execution after he has appealed, Herring v. Clobery, 12 Sim. 410; see Brinkley v. Brinkley, 47 N. Y. 40; Heinlen v. Cross, 63 Cal. 44; Matthews v. Chase, 41 Ind. 356; Ross v. Griffin, 53 Mich. 5; Hewitson v. Hunt, 8 Rich. 106; or his moving to discharge an order against him, Futroye v. Kennard, 2 Giff. 110: Parker v. Dawson, 5 L. J. Ch. 108; Hill v. Bissel, Mos. 258. And see, further, Hurd v. Robertson, 1 Ch. Cham. (Can.) 3; Marshall v. Marshall, 2 Hun 238.
In Bonesteel v. Lynde, 8 How. Pr. 226, the plaintiff had been subpoenaed to produce certain documents as evidence, and was convicted of contempt for his wilful failure lo do so. He afterwards obtained possession of the documents, knowing that a subpoena duces tecum had been issued for them. Held, on the trial, that his excuse, that he had lost or mislaid them, was inadmissible, and his complaint was stricken out, with costs.
The same rule applies to a defendant, Wilson v. Bates, 9 Sim. 54, 3 Myl. & Cr. 197; Haldane v. Eckford, L. R. (7 Eq.) 425; Fry v. Ernest, 9 Jur. (N. S.) 1151; King v. Bryant, 3 Myl. & Cr. 191; Everett v. Prythergch, 12 Sim. 363; O’Dell v. O’Dell, 1 Hog. 217; Perrin v. Oliver, 1 Minn. 202; Lane v. Ellzey, 4 Hen. & Munf. 504; Mead v. Norris, 21 Wis. 310; Koehler v. Dobberpuhl,
But an answer, in a divorce case, will be stricken out, for failure to pay-alimony, only in extreme cases, Casteel v. Casteel, 38 Ark. 477; Peel v. Peel, 50 Iowa 521; Baily v. Baily, 69 Iowa 77; Allen v. Allen, 72 Iowa 502; Cason v. Cason, 15 Ga. 405; Dwelly v. Dwelly, 46 Me. 377; Walker v. Walker, 20 Hun 400, 82 N. Y. 260; see Gant v. Gant, 10 Humph. 464.
In New York, the power of the court is limited by statute, Birdsall v. Birdsall, 4 Wend. 196; Rice v. Ehele, 55 N. Y. 518; and in California, Johnson v. Superior Court, 63 Cal. 578.
But, in Connecticut, such a statute has been held not to apply to proceedings in chancery, Roger’s Manf. Co. v. Rogers, 38 Conn. 121; and see, as to Florida, Edwards, ex parte, 11 Fla. 174; and Georgia, Cobb v. Black, 34 Ga. 162. — Rep.