2 Barb. Ch. 596 | New York Court of Chancery | 1848
If a correct copy of the condition of the bond is set out -in the bill furnished me, a mistake has -occurred by inserting the word not in such condition; so as to make the bond void if B. H. S. Mumford should not indemnify the obligee against the mortgage, which was then a lien upon the premises. As G. H. Mumford was merely a surety in the -bond, if the proper construction of the language of the instrument itself does not make him responsible for the neglect of his principal to indemnify the obligee, the bond cannot be reformed, so as to render him liable, even if it was his intention to bind himself at the time the bond was executed. For the statute of frauds requires an agreement in writing, to bind a surety. And if the surety has not already - executed a valid agreement to answer for the debt or default of his principal, this court cannot compel him to execute such an agreement; upon the ground that he has attempted to do so, but has failed of accomplishing his object, by mistake or inadvertence: Whether the whole of this bond with its condition, when taken together,
' The foreclosure suits were both commenced before the institution of the proceedings in bankruptcy; but the decrees were made subsequent to the vesting of the equity of redemption in Smith the assignee, by operation of law, if that equity of redemption was in Hutchinson when he was decreed a bankrupt. And to render the proceedings in the foreclosure suits regular, and to give a perfect title to the purchasers under the decrees of foreclosure, the assignee in bankruptcy should have been brought before the court as a party. Whether that was done in either of the foreclosure suits mentioned in the complainant’s bill does not appear. But upon the supposition that the bank has exhausted its remedy against the mortgaged premises, and that the sale under the decree upon the first mortgage exhausted the fund, which would have been appropriated to the payment of the bond and mortgage to the bank, if E. H. S. Mumford had paid off that prior mortgage, I think the complainant’s bill shows a palpable breach of the condition of the bond. It also shows that by the neglect of the obligors to indemnify and save him harmless from the prior mortgage, Hutchinson sustained damage to the amount of the deficiency, which he was decreed to pay to the complainant; even if the value of the premises conveyed to him, by Mumford, did not exceed the
It remains to be considered whether there is any thing stated in the complainant’s bill which is sufficient to authorize the court of chancery to take jurisdiction of this case ; instead of leaving the bank, as the assignee of the bond, to seek its remedy by an action at law against the obligors in such bond. As a general rule this court will not entertain a suit brought by the assignee of a debt, or of a chose in action, which is a mere legal demand; but will leave him to his remedy at law, by a suit in the name of the assignor. (Carter v. United Insurance Company, 1 John. Ch. Rep. 463. Hammond v. Messenger, 9 Sim. Rep. 327. Moseley v. Boush, 4 Rand. Rep. 392. Adair v. Winchester, 7 Gill & John. Rep. 114. Smiley v. Bell, Mart. & Yerg. Rep. 378.) Where, however, special circumstances render it necessary for the assignee to come into a court of equity for relief, to prevent a failure of justice, he will be allowed to bring a suit here upon a mere legal demand. Thus, in the case of Lenox v. Roberts, (2 Wheat. Rep. 373,) where the first Bank of the United States, previous to the expiration of its charter, had made an assignment of a debt, the late Chief Justice Marshall decided that the assignees could file a bill in equity, in their own names, for the recovery of such debt; they not having the power to sue at law in the name of the defunct corporation. Here no provision is made, by law, authorizing the assignee of a chose in action, to sue in the name of the assignees in bankruptcy of his assignor, without their consent. And the bill of the complainant contains an express averment, that the assignee in bankruptcy of' Hutchinson refused to join in a suit for the recovery of the damage consequent upon the breach of the condition of the bond in question. I should, therefore, have no doubt as to the jurisdiction of the court of chancery, in the present case, if it was necessary for the complainant to bring an action at law in the name of the as signee in bankruptcy, as well as in the name of Hutchinson, the assignor; or to bring it in the name of the assignee in bankruptcy alone.
In Carpenter v. Marnell, (3 Bos. & Pul. 40,) it was again decided that the action in such a case must be brought in the name of the bankrupt, and that it could not -be sustained if brought in the names of the assignees in bankruptcy. The decisions in our own courts also are in accordance with the
The decree appealed from must therefore be affirmed with costs.