Hale v. Gouverneur

4 Edw. Ch. 207 | New York Court of Chancery | 1843

The Vice-Chancellor :

There is not sufficient ground on which to refuse a decree. The condition of the bond is very explicit, to render the whole of the principal sum payable in case of default of punctual payment of interest. The court is bound to give effect to the bond according to the proviso in its condition: Noyes v. Clark, 7 Paige’s C. R. 179. The mortgage was given to secure the payment of the bond pursuant to its terms. The whole debt having become due, the court has no authority to compel the complainant to stay proceedings on payment of mere interest and costs. Whether the mortgage was given of the wife’s property to secure the husband’s debt, or was not, can make no difference in this case. Even if the wife is to be regarded here as a surety for the husband, still, there are no facts or circumstances through which she is entitled to be exonerated. True, the husband’s estate by the curtesy might be first sold; but as it is very certain that this would not produce enough to satisfy the present large amount of debt, the whole interest of both husband and wife had better be sold together: Niemcewiez v. Gahn, 3 Paige’s C. R. 614.

There must be a reference to a master to compute the principal and interest due on- the bond and mortgage; and, on the coming in and confirmation of the master’s report, the master will proceed to advertise and sell in the usual manner.

Decree accordingly.