7 Paige Ch. 179 | New York Court of Chancery | 1838
I think, from the petition of the defendant Clark, when taken in connection with the affidavit of the complainant, there can be very little doubt of a concerted plan between Hall and Roberts to deprive the mortgagor of the power of paying the interest, on the day when it became due, for the purpose of compelling him to pay the principal monies two years before the time of credit given by the condition of the bond and mortgage. The parties to the original agreement had an unquestionable right to make the extension of credit dependant upon the punctual payment of the interest at the times fixed for that purpose... And if, from the mere negligence of the mortgagor in performing his contract, he suffers the whole debt to become due and payable, according to the terms of the mortgage, no court will interfere to relieve him from the payment thereof according to the conditions of his own agreement. (Steel v. Bradfield, 4 Taunt. Rep. 227. James v. Thomas, 5 Barn. Adol. 40.) A court of equity, however, will not permit the mortgagee, or his assignee, to take an unconscientious advantage of the mortgagor who is willing to pay at the time prescribed, but who is unable to do so in consequence of.
The complainant appears to have acted in good faith in this case ; as he had no reason to suppose, from the circumstances under which this bond and mortgage was sent to him, that Clark had been deprived of the power of paying the interest according to the terms of his contract. But as it was sent to him to be collected and applied to the payment of a prior indebtedness of Roberts," he sits in the seat of his assignor and cannot be permitted to take advantage of the nonpayment of interest, which it would have been inequitable and unconscientious in Roberts to have done. And as the sum due for interest at the time of the filing of this bill was not sufficient to carry costs, the proceedings of the complainant must be stayed upon the payment of the interest due on the 10th of February, without costs.