Lansing v. Albany Insurance

| New York Court of Chancery | Mar 26, 1824

Chief Justice Savage.

The plaintiffs state, that on the * e e 4th February, 1822, the defendants filed their bill to foreclose two mortgages, executed by the plaintiffs to secure the payment of $11,500, for which notes were given on the 15th September, 1817, signed by John Lansing, jun. and endorsed by Sanders Lansing. That the plaintiffs discovering that they had never executed such mortgages as were set forth in said bill, put in their plea to that effect, which was afterwards withdrawn, the-plaintiffs assenting that the cause should proceed in the usual course, which was accordingly done. A reference was ordered to a master, and on the coming in of his report, a decree was made on the 9th day of April, 1823, directing a sale of the mortgaged premises. The decree has been enrolled, and notice given of the sale of the mortgaged premises. That after the enrolment of said decree, the plaintiffs discovered that no such notes as are described in said bill, were ever executed. That neither the notes nor the mortgages were filed in the Register’s office, till lately \ and that the notes filed, though made by .John Lansing, jun., have no resemblance to those described in said bill, and are dated December 15, 181,9 : and that the mortgages filed are different from those described. The plaintiffs therefore represent that said decree is erroneous and contrary to law, and ought to be reversed for four errors assigned. Because,

1. There were no such notes as are described in said bill.

2. The mortgages filed are not the same as those described, and have no relation to, or connexion with, the said notes.

3. There were no such mortgages as are described in said bill.

4. The decree of a sale of the mortgaged premises was contrary to law.

The bill of review was filed January 15,1824, without leave.

To this bill the defendants demurred. The cause was noticed for argument at the present term. On the 22d instant, leave was given, on a petition presented for that purpose, to file a supplemental bill of review, for the purpose of adding to the original bill of review, the fact lately discovered, that at the time when the proceedings were had in the original cause, James Kent, Esq., then chancellor of this state, was a stockholder in the Albany Insurance Company, to the amount of 55 shares; though no adjudication was actually made by him, the decree therein having been entered by virtue of a written stipulation of the plaintiff, John Lansing, jun., consenting thereto. I am therefore to consider the latter fact assigned for error, as if the same had been stated and set forth in the bill of review; the leave given having no other effect than to place the plaintiffs in the same situation as if it had been so stated.

A bill of review is in the nature of a writ of error, and is brought for the purpose of reversing a former decree. There are but two cases in which this bill is allowed to be brought.

1. For error in law appearing upon the face of the decree itself.

2. Upon the discovery of new matter of fact, material to the subject matter of the decree. Cooper, 89. 91.; 2 Mad. ch. 408.; 1 Har. 137. 140.

It is not pretended in this case, that the decree now sought to be reversed, is inequitable ; that the money purporting to be due, has been paid, or any part of it; that any injustice will be done by permitting the decree to stand. The purposes of justice do not require a reversal; and it is not alleged that a decree for an equal amount would not be made, had the proceedings been regular. So far as the bill of review seeks a reversal of the decree, on account of error, apparent upon the decree itself, it is properly filed. The only alleged error of that kind is, that it is contrary to law to decree the sale of lands mortgaged in fee ; and it is contended that nothing can be sold on mortgage but personal property, on a term for years, and that such is the practice of the court in England. It is not necessary for me to discuss this question at large. Sales on mortgages in fee have been directed by this court since its first organization, or at least, since the passing the statute authorising sales on mortgages. At present, such sales are expressly authorised by statute, 1 N. R. L. 490. sec. 11.; by which it is enacted, that sales shall be made and deeds executed by the master, which shall have the same effect, as if executed by the mortgagor and mortgagee.

So far as a reversal is sought, on account of error in fact, or matter newly discovered, the bill is not properly before me. Leave of the court should have been obtained, and such leave should have been stated in the bill. 1 Har. 139. I shall, therefore, consider the question as if arising upon a petition for leave to file a bill of review.

The facts set forth, as newly discovered, are such as might have been known, with ordinary diligence, before the decree; some of them were known, as appears from the plaintiff’s own showing. Upon a supplemental bill, in the nature of a bill of review, the question always is, not what the plaintiff knew, but what, using reasonable diligence, he might have known. Young v. Keigly, 16 Ves. 352.; 3 John. ch. 126.; 2 ib. 490.

This rule is perfectly reasonable. It is proper that there shall, at some time, be an end of litigation; and parties should not be permitted, as in this case to confess a judgment, and afterwards to contest the facts then in the knowledge of the party, and under which knowledge he acted.

Whether the objection to the competency of the late chancellor, under the circumstances of this case, is well founded, I need not inquire. It is an established maxim, that no man shall be a judge in his own cause; and the reason is, that his interest may bias his judgment. Whenever that interest exists, when the reason of the rule exists, the rule itself is in full force. In this case, every stockholder must have been named, but for the act of incorporation, which authorises an action in the corporate name of the company ; and the interest of each stockholder is the same as if he was particularly named as one of the parties. It is decided in Dr. Bonham’s case, 8 Co. 107., that the members of an incorporated company, the president of the college, or commonalty of the faculty of physicians in London, were incompetent to act in imposing a fine, because the corporation was entitled to half such fine : and Lord Coke remarks, that the censors cannot be judges, ministers, and parties :—-judges to give sentence or judgment; ministers to make summons; and parties to have the moiety-of the forfeiture, quia aliquis non debet esse judex in propria causa; imo, iniquum est aliquem suae rei esse judicem. And one can not be judge and attorney for any of the parties.

It is stated in the bill, and so the fact undoubtedly was, that no judicial act was done by chancellor Kent. The proceedings were had out of court, and the chancellor knew not that such a cause was in his court. After plea pleaded, it was withdrawn, and a stipulation entered into, by virtue of which the decree was entered.

There is no complaint that the decree was for too much, but the plaintiff seeks to reverse it, on what is here emphatically a strictly technical objection. I am satisfied it ought not to be allowed. The plaintiff comes too late. He knew, or might have known the chancellor’s interest, as well before as after the entry of the decree. The defendants are therefore entitled to judgment on the demurrer.