Holden v. Gilbert, 7 Paige Ch. 208

Holden v. Gilbert

7 Paige Ch. 208 | New York Court of Chancery | 1838

The Chancellor.

The master was clearly right in the conclusion at which he arrived, on the reference, that only one instalment of $1000, and the interest on that instalment, has become due. The provision in the power of sale, giving the right to advertise and sell after a default for thirty days in paying the instalments and interest, and the authority, in case of such sale, to retain the whole principal, and interest due and to become due, do not change the construction of the mortgage as to the time when the payments are to become payable, so as to authorize a suit upon the bond, or a foreclosure of the mortgage in equity. They are ( only applicable to a proceeding to foreclose by a sale, under *211the statute, by advertising for six months. If the mortgagee elected to proceed in that way, he must wait thirty days after the instalment became due, before he could advertise ; and then if the instalment, with interest and costs, was not paid before the sale, he was to retain the whole mortgage money and interest, although it had not all become payable according to the condition of the bond and mortgage. This latter clause was probably unnecessary ; as the mortgagee would have had the right, upon a statutory foreclosure and sale of the whole premises, to retain to the full extent of his mortgage and interest, under a power of sale in the usual form; without a special stipulation to that effect in express terms, as in this case. The complainant therefore is not entitled to an absolute decree of sale for the whole debt. He is only entitled to the usual decree in cases where only a part of the mortgage money has become due, and where the premises are so situated that they cannot be sold in parcels ; that is, to sell and to retain the whole amount of mortgage money, and interest and costs, unless the amount now actually become due and the costs of the suit are paid before the sale; with liberty to apply to the court fora sale to satisfy future instalments, when they become due, if the amount now due is paid w'ithout a sale.

The remaining question to be disposed of, is the defendant’s claim to offset the judgment and the notes which he has purchased since the comemcement of this suit. By the revised statutes set-offs are to be allowed in this court, in suits brought here to recover or obtain the payment of money, in the same manner and with the like effect as in actions at law. And this court has recently decided that a suit in chancery to obtain satisfaction or payment of monies due on a mortgage, is a suit in which such a set-off may be made, by the defendant against whom or whose property the complainant is seeking to obtain a decree for the recovery of the mortgage debt. (Chapman v. Robinson, 6 Paige’s Rep. 627.) But no set-off can be allowed in a foreclosure suit, under the provisions of the revised statutes, which could not be offset in analogous cases at law. It is well settled that in actions at law no debt can be offset un*212der the statute, so as to diminish the amount of the judgment to be recovered, unless such debt existed against the plaintiff, in favor of the defendant, at the time of the commencement of the suit, and had then become due and payable. And to avail himself of the set-off the defendant must appear and defend the suit, and plead or give notice of such set-off, so as to enable the adverse party to bring witnesses to contest the claim. In the present case it is not pretended that the defendant was the owner either of the notes, or of the judgment, at the time the subpoena was served in this suit; and neither of the notes had become due at the time when the complainant was entitled to a final decree upon his bill taken as confessed. If there was any agreement on the part of the complainant to have the defendant purchase the notes and judgment, and to receive the same as payments on the mortgage, the defendant should have applied to the court for leave to put in an answer setting up that defence ; as it cannot be tried on the conflicting affidavits of the parties.

A set-off of one judgment against another is allowed on equitable principles, upon motion ; and I am not prepared to say that, in a proper case, a judgment at law, in favor of the defendant, might not be offset against a decree, in faivor of the complainant, for the sale of mortgaged premises to satisfy the debt and costs due to the latter. But in this case it would be wholly inequitable to permit the defendant to offset a judgment which is against this complainant as the mere surety of the other defendant in that judgment, and where the party applying for the offset has in his own hands, as assignee, an ample fund originally belonging to the real debtor, which has been specially appropriated for paying this and other preferred debts. And as to the notes, which are unliquidated debts, and on which the complainant, for aught we now know, may never become liable as endorser, there is no pretence for offsetting them upon motion. If the present instalment with interest and costs is paid, so as to prevent a sale, and the defendant succeeds in obtaining judgments on any of the notes, against the complainant as endorser, in time to meet future instalments before they *213are collected by a sale of the mortgaged premises, he will then be permitted to apply, by motion, to offsefone liquidated debt against the other, upon equitable principles.

The defendant’s petition must therefore be dismissed with costs, to be taxed as costs in the cause. And the complainant must be permitted to take his decree for sale, &c, in the usual form as before suggested.