111 Mass. 22 | Mass. | 1872
The jurisdiction of this court as a court of equity is limited by statute to those cases where there is not a plain, adequate and complete remedy at law. Bills to redeem mortgages of personal property, when objection to the jurisdiction is taken by demurrer, will not be entertained therefore, unless a case is disclosed in the allegations, where, from the nature of the property mortgaged, the peculiar relation of the parties, or the difficulty of ascertaining the amount to be paid or tendered, it is apparent that the mode specifically provided by statute for the redemption of such mortgages, will not fully protect the mortgagor’s rights. Gen. Sts. c. 113, § 2; c. 151, § 5. Boston & Fairhaven Iron Works v. Montague, 108 Mass. 248.
This bill alleges that the mortgage was given to secure notes made for more than was due at the time “ for the purpose of securing the said property to the plaintiff, and upon the express agreement and understanding ” that the notes were not to be paid. If this is only relied on as showing partial want of consideration, then it is a defence to the notes which, if it amounts to anything, may be availed of as effectually at law as in equity. Hodgkins v. Moulton, 100 Mass. 309. The mortgagor, in proceedings for redemption under the statute, is required to pay or tender only the amount actually due, and for all that appears may have effectual relief there. If the bill means to charge that the mortgage was made and the notes given with intent to defraud creditors, then the answer is that as between the parties the transaction is valid and binding, and the plaintiff cannot be heard to allege his own turpitude as ground for relief in equity. 1 Story Eq. § 371. Wearse v. Pierce, 24 Pick. 141, 146.
The plaintiff does not state a case which entitles him to relief within the rule above stated. Demurrer sustained