1 Del. Ch. 310 | New York Court of Chancery | 1825
refused to award the writ, and assigned the following as his reasons :
Upon the best consideration which I can give to the subject, I do not think that upon the case made in the petition the writ of injunction should be ordered.
It seems to me to be clearly and reasonably settled that a mortgagee may use all the remedies upon a bond and mortgage which the law affords, at the same time, and consequently any one of them which he prefers; but that he shall not take a double satisfaction for the debt. In Booth vs. Booth, 2 Atk. 343, Lord Hardwicke says, “ though “ the defendant is foreclosing the equity of redemption “ here, yet he is not precluded from bringing an ejectment “ at law at the same time, unless there is something very “ particular to take it out of the common case.” And Lord Redesdale, in 1 Sch. & Lef. 176, states the general rule to be, that “ where a party is suing in this Court he “ shall not be allowed to sue at law for the same debt. “ But the case of a mortgage is an exception to this rule ; “ he has a right to proceed on his mortgage in equity,and “ on his bond at law at the same time.” In the case before Lord Redesdale there was something ‘ very particular,’ (as Lord Hardwicke said), which formed an exception to the general principle, but not applicable to the present question. And in 3 Johns. Ch. Rep. 331, Chancellor Kent says it seems to be generally admitted in the books, that the mortgagee may proceed at law on his bond or covenant at the same time that he is prosecuting his mortgage in Chancery.
If the mortgagee may thus proceed, both at law and in equity, he certainly may have the fruit of both, or of either, so that he does not take a double satisfaction ; and whether he proceeds at law on the bonct and mortgage, or
According to the petitioner’s affidavit he has had a large surplus of assets for the payment of his debts. They may be thus stated:
Estimated value of the mortgaged premises, ■ $50,000.00
Plantations in Bucks, county, purchased for 50,000.00
Fourteen houses in Philadelphia, estimated at 14,000.00
Total, $114,000.00
LIABILITIES.
The three prior mortgages, $25,000.00
The present bond and mortgage, 15,400.00
The subsequent judgment, 34,668.02
75,068.02
Add for interest, say, 20,000.00 ' 95,068.02
Surplus of assets, $18,931.98
With all these funds in the power of' the petitioner, it may be asked why he does not pay off the bond and mortgage ? I see no reason for taking this case out of the common course.
But it appears that the plaintiffs at law have met with real difficulties in getting this money in Pennsylvania. The mortgaged land did sell at a sale made by the sheriff, under another judgment, for a sum sufficient to discharge this and all the other mortgages, and to leave a balance of from $7,000 to $10,000 ; and yet, because the petitioner conceived that the property had been sold for much less than its real value, he applied to the Court and had the sale set aside. How, this proceeding interposes a serious difficulty ; for it may be inferred that the highest and best price bidden is not to be taken as the measure or standard of the value, but that a sale by the sheriff is to depend upon some imaginary value. It is not alleged that there was any irregularity in the sale, nor any unjust or unfair conduct in the sheriff, or in any other person ; nor
Afterwards, on the 26th of October, 1826, another petition and affidavit of the same petitioner was presented to the Chancellor praying the same relief as did the former. This latter petition and affidavit alleged as a further ground of equity that after the sale by the sheriff of the tract of land in Delaware county, Pennsylvania, and the setting aside of the same by the Court, the petitioner proposed to the defendants, the executors of Thomas Hewbold deceased, to convey and assign the said mortgaged premises to a trustee for the creditors, with power to sell the same and to apply the proceeds in discharge of the liens thereon; that said proposal was acceded to by the executors, who nominated for such trustee one Alexander'Helmslie; that thereupon, the petitioner executed such conveyance to said Helmslie, upon the trust aforesaid; and pursuant thereto the executors took possession of the premises; that said conveyance was made with the express understanding and agreement that the property so conveyed was to be first resorted to for the payment of the liens against it, according to their priority.
Hpon this petition an injunction was awarded, as prayed for. , .