14 N.J. Eq. 208 | New York Court of Chancery | 1862
The hill is filed to foreclose a mortgage given by Enlef I. Swackhammer to Isaac G-. Earlee, on the first of October, 1852, to secure the payment of $300. On the tenth of September, 1856, the mortgage was assigned
The controversy in the cause is between the complainant? who holds the first encumbrance, and Allen, the owner of the equity of redemption, who became the purchaser upon the foreclosure of the second mortgage. The only question is, what payments, if any, are to be credited upon the complainant’s mortgage.
There is no controversy but that payments, amounting to $119, were made upon the complainant’s mortgage while it remained in the hands of Farlec’s administrator, by means of which the principal of the bond was reduced to $233. We have a statement under the hand of the administrator showing that this amount of principal, with $6.20 for five months’ and ten days’ interest, amounting to $239.20, was due at the date of the assignment to the complainant. This sum is specified in the assignment itself as the consideration of the transfer. It is equally clear that, after the assignment to the complainant, he received the further sum of $90 on account of the mortgage debt, and gave a receipt for -tho same. Neither payment is disputed; but it is claimed that these payments were made not by the mortgagor, but by his1 brother, Cornelius T. Swackhammer, and that they were made not in payment of the debt, but in purchase of the mortgage
The evidence warrants the same conclusion in regard to the $90 paid by Swackhammer to the complainant. "We have the complainant’s evidence that, in April, 1857, he received $90 of Swackhammer, and gave a receipt for the same. That receipt is not produced. It would certainly afford the best evidence- of the true character of the transaction. The only reason given by Swackhammer for its nonproduction is the simple- declaration, “I have not got it here now.” Upon this statement he gives his version of the contents of the receipt. This evidence is clearly incompetent. The receipt itself should have been produced or its nonproduction accounted for. His account of the agreement differs materially from that of the complainant. Swackhammer says the receipt stated, that if he paid the balance of the debt the mortgage was to. be assigned to him, if not, the money paid was to be refunded. The complainant says, that when the $90 was paid, the understanding was, that when the balance of the mortgage was paid, it should be transferred to Swackhammer — and adds, that the understanding was not embodied in the receipt. He says nothing of the repayment of the money. According to the complainant’s own evidence the whole understanding was, that if Swackhammer paid the balance of the mortgage, it would be assigned to him. Ho
The evidence shows very clearly that the real debtor in this cause is Cornelius T. Swackhammer, in whose favor the complainant is seeking to enforce the recovery of the sums paid upon the mortgage. It appears, from his own evidence, that while the legal title to this land was in his brother, the mortgagor, he (Cornelius) received the rents and profits; that he bargained with Yan Doren for the sale of the property, and received from the vendee the price of the land ; that by his order the deed was executed by the mortgagor to Yan Doren, and that, by reason of the warranty given to Yan Doren, he has never been called upon for the payment of principal or interest upon the mortgage, but that all the payments on account of the mortgage have been made by Cornelius T. Swackhammer himself. "What is the real relation
It was urged, upon the argument, that the complainant stands in the position of a trustee of Swackhammer; and that, although the entire debt is not due to the complainant, he is bound in equity to account to Swackhammer for all the payments made by him upon the mortgage. If that be true, this bill is defective for want of necessary parties, and should be dismissed. No principle of equity pleading is better settled than that there can be no foreclosure unless all the persons entitled to the mortgage money are before the court. The cestui que trust, as well as the trustee, should be parties to the bill. Story's Eq. PI. § 201.
. But there is no such allegation in the complainant’s bill; nor any pretence of a trust. The bill is filed in the complainant’s own name, claiming the mortgage debt as due to himself alone. I am satisfied, from the evidence, that the bill is rightly framed; that there is no trust, and that Cornelius T. Swackhammer has no equitable interest whatever in the mortgage which entitles him to the protection of this court.
In taking the account of the amount due upon the complainant’s mortgage, credit must be given for all the payments claimed by the defendant to have been made, as well for the $90 as the payments made to the administrator of Earlee.
The complainant’s rights under his second mortgage cannot be affected by the decree of foreclosure and sale and conveyance to Allen under his mortgage. The price for which the property was purchased at that sale cannot affect the equities subsisting between the mortgagees. The subsequent encumbrancer can redeem only by paying the full amount of Allen’s mortgage debt. Benedict v. Gilman, 4 Paige 58.
The decree will be made without costs to either party. The conduct of the complainant in refusing to inform the ,de