10 Paige Ch. 481 | New York Court of Chancery | 1843
The order of the vice chancellor denying the appellant’s application in this case was right, for various reasons. Independent of the fact that the contract or loan, upon which the defendant’s bond and mortgage were given, was made in Massachusetts, and therefore not affected by the usury laws of this state, there is no specification of the nature of the alleged usury in the petition, so as to give the officers of the bank an opportunity to deny what is only stated in general terms, upon information and belief. And they have in fact denied the charge of usury, so far as it was possible to deny such a general allegation, by showing that the mortgage was given upon a contract which appears to have been legal, and not tainted with usury.
Again ; as to the supposed defence upon the ground that the bond and mortgage were not duly executed by the defendant as a corporation, the cause having proceeded to a decree, the court is bound to presume that the bond and mortgage upon which such decree was based were duly executed, until the contrary is shown. And a party in interest who applies to come in and defend, in this stage of the suit, is bound at least to show a probable defence on his part. Here the complainant is not in possession of the corporate books of the defendant, and is not in a situation to be supposed to know, and to be able to state in an affidavit all the facts, as to the authority of the officer of the corporation who affixed its seal to the bond and mortgage. In such a case it is not sufficient for the party making an application to come in and defend a suit, in the place of the defendant therein, to swear to his information and belief merely, that the bond and mortgage were not legally executed
I think the vice chancellor was also right in supposing that this was not a case coming within the act of May, 1840, which allows a judgment creditor who has not been made a party to a bill of foreclosure, or any other person claiming any right or equity of redemption under'a judgment, to apply and be made a party to the suit. The object of that provision was to protect the rights of creditors by judgment or decree, subsequent to the mortgage, and persons claiming under them, who must have been made parties to the foreclosure suit, previous to the act of 1840, in order to bar their rights of redemption. Before the passage of that act a purchaser, pendente lite, from a defendant in the suit, after the filing of the notice of lis pendens, and creditors by judgment or decree, against such defendant, who had obtained their liens upon the mortgaged premises during the pendency of the foreclosure suit, were bound by the proceedings and decree, although they were not ac-' tual parties. And if they wished to interpose a defence, they could only do it in the name of the defendant. Or if he colluded with the complainant, or refused to permit those who had acquired interests under him, subsequent to the commencement of the suit, to make a proper defence in his name, their only remedy was to make themselves parties to the suit, by a bill to protect their rights. (Mitf. Pl. 73. Story’s Eq. Pl. 286, § 351. Foster v. Deacon, 6 Mad. Rep. 59.)
The order appealed from is therefore affirmed with costs.
