Goldsmith v. Osborne

1 Edw. Ch. 560 | New York Court of Chancery | 1833

Tee Vice-Chancellor.

The question whether the defendant could sell the mortgaged premises under the power contained in the mortgage, with a reservation of the dower of the mortgagor’s wife in case she survived him, is not material to be settled at present.

There are other circumstances connected with the sale which would be sufficient to invalidate it. I refer to the defendant’s conditions of sale; and his refusal to vary them. He required payment and performance of the purchase within an hour’s time after the sale ; and also, that such payment should be made in specie. The remonstrances of persons who went to purchase were not attended to by him. All this was evidently done in order to deter persons from buying the property and the better to enable the defendant to get it at his own price. This is a practice out of the usual course of statutory sales. It is oppressive and unjust towards a mortgagor. The court will not countenance such proceedings. It is a course of conduct sufficient to authorize a court of equity to set aside a sale ; and is also enough to allow me to consider the defendant as a mere mortgagee in possession, and the complainant entitled to all the rights and privileges of a mortgagor.

It will be necessary, therefore, to view the parties as mortgagor and mortgagee ; and revert to the' powers of the former as such. He has not the right to file a bill for the purpose of having the property sold. He can sell his equity of redemption, without the interference of a court of chancery. But if he will come into this court with bill against a mortgagee, seven where the latter is in possession, he must offer to redeem. The bill, it is true, may pray for an account; but if any thing is due from the mortgagor for principal or interest, the mortgagor must offer to pay it. He cannot ask to have the mortgagee turned out of possession and the property sold to pay the mortgage debt. The mortgagee is entitled to hold until the amount of his debt is actually paid into his hands : 1 Powell on Mortgages, 338 ; Postlewaite v. Blythe, 3 Mad. 242, S. C. 2. Swanst. 256.

E the mortgagor is driven to the necessity of filing a bill, it roustbe one to redeem. This court can only relieve him against his mortgagee by allowing a redemption. Burnett v. Dennision, 5. J. C. R. 35.

The complainant suggests his poverty; but this is not enough to help him.

As the bill' is not filed for a redemption, the demurrer must he allowed, with costs.