Perine v. Dunn, 4 Johns. Ch. 140

Perine v. Dunn

4 Johns. Ch. 140 | New York Court of Chancery | 1819

The Chancellor

having corrected the report, and determined, upon the facts contained in a special report of the Master, the amount of the principal and interest due upon the bond and mortgage, decreed, that the plaintiffs should *141pay the same, together with the costs of this suit, and certain costs directed to be paid by the former decree of the 28th of September last, within three months, or that the bill stand dismissed with costs. He said it might be proper here to give some explanations on the subject of these allowances of time, made in a decree to redeem or foreclose.

The period of six months was allowed by Lord HardwicJce, in the case of Proctor v. Oates, (2 Atk. 139.) which was upon a bill to redeem. The six months were computed from the date of the Master’s Report ascertaining the amount due upon the mortgage, and upon default, the bill was to be dismissed. From what Lord Eldon said, in Novosielski v. Wakefield, (17 Ves. 417.) it maybe inferred, that the usual time allowed to redeem, on a bill by the mortgagor to redeem, was six months after the debt was liquidated by the Master’s Report; and a distinction was taken by the Chancellor, between a bill by the mortgagor to redeem, and a bill by the mortgagee to foreclose the equity of redemption. In the latter case, he admitted, that it was. the practice, after giving the usual time of six months to redeem, in the decree of foreclosure, to enlarge the time, upon motion and upon terms. He said, he had found such a practice established by his predecessors, and- he had followed it with considerable regret, as the effect was frequently a severe grievance to the mortgagee. The period to redeem, on a decree of foreclosure, hasj in some cases, been several times enlarged from six months to six months, or from three months to three months, upon equitable terms, and under the special circumstances of the case. (Anon. 3. Eq. Cas. Abr. 605. n. 37. Edwards v. Cunliffe, 1 Mad. Ch. Rep. 287.) But in the case of a bill to redeem, the plaintiff professes to be ready with his money; and Lord Eldon would not enlarge the time for payment, and said there was no such practice.

I take it for granted, that the time to be allowed by the decree to pay the mortgage debt, whether on a bill to re*142deem, or upon a bill to foreclose, is not absolutely certain# but rests in discretion, and will be regulated by the circumstances of the particular case. In the precedents in the Equity Draftsman, the time is left blank. But I am inclined to think, that six months is the usual time under the English practice, on bills to redeem; and there is the more reason for the allowance of such a liberal time, considering that the timé will not afterwards be enlarged, and that a failure of payment by the time would, probably, be equivalent to a forfeiture of the equity of. redemption. This was so understood by the counsel, in the case already cited from If Vesey. The usual decree, in these cases of bills to redeem, where the party fails to redeem, or is not entitled tb redeem, is, that the bill be dismissed. (Smith v. Valence, 1 Rep. in Ch. 90. Roscarrick v. Barton, 1 Ch. Cas. 217. St. John v. Turner, 2 Vern. 418. Packington v. Barrow, Prec. in Ch. 216. Knowles v. Spence, 1 Eq. Cas. Abr. 315. Proctor v. Oates, 2 Atk. 139. Hartpole v. Walsh, 4 Bro. P. C. 369. Van Heytheuysen’s Eq. Draftsman, 648. New York edit.) Such a dismissal, I apprehend, amounts to a bar of the equity of redemption, because it might be pleaded in bar of a new bill to redeem.

A bill regularly dismissed upon the merits, where the matter has been passed upon, and there is no direction that the dismission be without prejudice, may be pleaded in bar df a new bill for the same matter. This is the amount of the cases on the point. (Prettyman v. Prettyman, 1 Vern. 310. Peterborough v. Germaine, 1 Bro. P. C. 281. Anon. 1 Ch. Cas. 155. Brandlyn v. Ord, 1 Atk. 571. Cater v. Dewar, Dickens, 654.) There may, indeed, questions arise on this subject, as, whether the decree of dismissal has been duly enrolled, or duly and finally rendered, or whether it amounts to a res judicata upon the substance of the bill; but assuming these points of form and criticism to be all properly settled, it would seem to be within the reason of the rule, that a decree dismissing a bill Seeking to redeem, *143because the plaintiff would not redeem when allowed and directed, should conclude the party from a new bill to redeem. Why should he be allowed to vex the mortgagee again with a faithless proposition ? The maxim in the civil law would seem to be applicable to such a case — bona Jules nonpatitur ut bis idem exigatur. A decision of Lord Macclesfield, in Jones v. Hendrick, (Belt's Supp. to Ves. 381. vol. 2. 450., and 3 Bro. P. C. 315. old ed.) overruling a plea of an absolute decree of foreclosure, to a bill subsequently brought to redeem, does not seem to be reconcileable with principle. It would be better if we were permitted to read that case as Lord Harduicke understood it, (2 Ves. 450.) who considered the plea to be bad, because there was no final and absolute order for foreclosure. On that ground, the decision overruling such a plea would be intelligible. It may be proper here to observe, that though six months, subject to enlargement, are allowed to redeem, on a bill to foreclose, yet the rule and the practice apply only to cases of strict foreclosure, where, by the decree, the equity of redemption is barred, and the complete title is vested in the mortgagee. The rule does not apply to cases of decrees for the sale of the mortgaged premises, according to our usual practice. The mortgagor, in sucli cases, is not subjected to a severe and absolute forfeiture of all his right, hut he has the chance of the surplus moneys arising from the sale, and is placed upon the same footing of equality with debtors against whom judgments are rendered, and executions awarded at law.

In the present case, I have allowed to the plaintiff three months only, because the bill was not simply a bill to redeem. The main object of it was to set aside the mortgage, and it has led to a long and discouraging litigation of several years. The prayer to redeem was upon the condition that the plaintiffs failed in their principal purpose. In such a case, the mortgagee who comes out of the contest successfully has a just right to expect, and to demand *144prompt redemption. So, in the late case of Brinclcerhoff v. Lansing ,* one object of the bill was to set aside the mortgage as satisfied, and kept on foot by fraud. The idea of redeeming it did not seem to have occurred to the plgintiffs. I, therefore, required prompt payment on the final t]ecjsjonj as the mortgagee had been detained, by a suit for years, from his remedy on the mortgage. In such cases, it is peculiarly incumbent on a mortgagor to be ready with his money. But where the bill is a plain simple bill to redeem, and there has been nothing unfavourable in the conduct of the mortgagor,.I shall be disposed to follow the English practice in the allowance of time.

Ante, p. 65.