23 N.J. Eq. 509 | N.J. | 1872
The opinion of the court was delivered by
The Vice-Chancellor, who heard this case, decided against the defendant below, who is the appellant in this court.
The defence stood upon the ground that the transaction, embracing the sale of the property and the taking of the mortgage, was invalid, in consequence of the want of mental capacity in the appellant. Upon the opening of the matter here, this court considered the questions involved so clear of doubt that the counsel of the respondent was not called upon for a reply.
On the point of intellectual incompetency, which was the only one involving the merits, the proofs were conspicuously feeble. Taken at the strongest, they merely showed an excitement of mind, touching, religion, which tended towards monomania. Even if aberration of mind existed, it iras confined to this sphere 'of mental action. There was no attempt to show anything beyond this. The defence, therefore, was built upon a false foundation, viz. on the supposition that if any phase of insanity was apparent, the transaction in question was invalidated. But this was an entire mistake. Such a circumstance would indeed quicken the ordinary vigilance of a court of justice into a watchful jealousy, but standing alone, it would not be sufficient, of necessity, to set aside a
The decision in the court below was also right with respect to the question of costs. The appellant complains that he has been burtliencd with the costs of the mortgagee on a bill to redeem. There can be no doubt that the usual practice in a court of equity is to refuse, in ordinary cases, costs to the complainant in suits of this description. The proceeding, in its simplest form, is one beneficial to the mortgagor alone, its object being to free the property from the encumbrance which be himself has put upon it; and hence the rule, as above stated, is a just one when applied to such a proceeding. Rut the mortgagee can lose the benefit of this ride by bis own misconduct, and, under such circumstances, may be made to pay costs. There are a number of cases in the English reports which establish this reasonable exception to the general rule. Among these are the following, viz. Shuttleworth v. Lowther, cited in Detillin v. Gale, 7 Ves. 583 ; Mocatta v. Murgatroyd, 1 P. Wms. 393; Harvey v. Tebbutt, 1 J. & W. 197.
In the present instance, the conduct of the appellant has
To avoid misapprehension, it is proper to remark that in reviewing the foregoing question of costs it is not intended to intimate that it is unquestionable that an appeal will lie on account of an error in a decree on the point of costs. No opinion is expressed on the subject.
- The question of a tender, unattended by the payment of the money into court, was not appealed from, and, consequently, has not been considered by this court.
The decree should be affirmed.
For affirmance — Beasley, C. J., Clement, Dalrimple, Depue, Ogden, Olden, Soudder, "Van Syckel, Wales, Woodhull. 10.
For reversal — None.