38 Ala. 674 | Ala. | 1863
The earliest decision upon the question, whether the chancellor will allow an extension of the time prescribed in his decree for the payment of the mortgage debt, is that of Lord Eldon in Novosielski v. Wakefield, 17 Vesey, 417. In that case, the lord chancellor distinguishesbetween suits to foreclose, and suits to redeem; and, while he concedes that the practice is to extend the time of payment in the former cases, he denies that there is any precedent for the extension in the latter, and refuses to begin such a practice. The reason given for the discrimination is, that the mortgagor’s attitude in the two cases is altogether different. In a foreclosure suit, the proceeding is against him, to compel the payment of the debt, or effect a forfeiture of his estate ; while, in a redemption suit, “he comes into court, saying, ‘here is the money, give me my estate’.” This decision of Lord Eldon was followed in the case of Falkner v. Bolton, 7 Sim. 319.
In this country, the decision of Lord Eldon seems to have the sanction of Chancellor Kent. — Perine v. Dunn, 4 Johns. Ch. R. 140 ; Brinkerhoff v. Lansing, ib. 65. In Vermont, the practice which restricts the mortgagor to the time of payment prescribed in the decree, has been applied to foreclosure, as well as redemption suits. — Smith v. Bailey, 10 Vermont, 163. See, also, Turner v. Turner, 3 Munf. 66; Waller v. Harris, 7 Paige, 167 ; 1 Powell on Mortgages, 403, n; 3 ib. 999 ; Hilliard on Mortgages, 39, § 17. An industrious examination has enabled us to find no case, in which the right of the mortgagor to pay the debt and
The prevailing distinction above alluded to, between foreclosure and redemption suits, renders the precedents referred to by the appellant’s counsel, as to the practice in the former, inapplicable to the .question decided by the chancellor. We do not decide, that relief could not be granted, in a case the facts of which brought it within the recognized ground of chancery jurisdiction in cases of fraud, accident, or mistake, unmixed with negligence on the part of the party himself. . This case is totally unlike that of Delage v. Hazzard, 16 Ala. 196. The question there was not as to redemption, and the complainant seems to have been prevented by the act of the register from complying with the prescribed condition.
It is contended, that the dismissal of the complainant’s bill ought, at all events, to have been without prejudice to bis right te file another bill. An authority of high repute, upon questions of pleading and practice, declares, that this qualified order of dismissal is made where the dismissal is ■occasioned by any slip or mistake in the pleadings or in the proof. — 2 Dan. Ch. Pl. & Pr. 1200. The dismissal of the complainant’s bill in this case did not result from any «lip or mistake in the pleadings or proof, but from his failure to comply with an order of the court, to pay a certain sum of money, which, by his bill, he had proposed to pay. This failure was occasioned, either by his negligence, his inexcusablé misapprehension of his duty, the negligence of others in whom he confided, or by a combination of all these causes. He has no claim, either-upon the law, or upon the score of charity, to an opportunity for the renewal of the litigation. In this State, numerous decisions upon the subject of dismissals without prejudice have been made, none of which announce a doctrine which would sustain the appellant’s argument on this point. — Danforfh v. Her
The decree of the chancellor is affirmed.
