86 N.Y. 597 | NY | 1881
The plaintiff's own proposition, as submitted by her counsel, is really an answer to the appeal. Assuming in the printed points a case most favorable to herself, she says, under these circumstances "a decree for a specific performance is almost a matter of strict legal right." It is, therefore, conceded to be so far deficient that something more is needed to make a cause of action, to which, as of course, the law will, by its own operation, apply a remedy. For this reason the principles of equity are invoked; yet they are to be applied, not as of course, but in the exercise of a sound discretion, and never in place of facts to make out a case for relief. The plaintiff shows no ground of action. She accepted the defendants' promises in full payment of the purchase-price of the property sold. By the express terms of the agreement $22,000 (part of this price) was discharged or paid, by his "assumption" of the mortgage. I do not think the word, as commonly understood, would indicate *601
a promise of immediate payment, or even of payment when due, but rather an adoption of or taking upon himself the burden of the mortgage, the care of it, so that the mortgagor should not be harmed or troubled by it. In substance then a promise, to indemnify, or hold the mortgagor harmless for or on account of it, not of payment under any circumstances to her. If, indeed, she should be called upon, either by action upon the bond, to secure which the mortgage was given, or be compelled to pay a deficiency arising on the foreclosure of the mortgage, the defendant would, by the terms of his agreement, be liable to her. (Comstock v. Drohan,
I am aware of no case, and certainly the appellant has cited none, where a court of equity has interfered in behalf of a surety to compel the principal debtor to pay a debt before it has been ascertained that the fund primarily liable was insufficient to discharge the obligation, or while the creditor was in court seeking to enforce it. In Warner v. Beardsley (8 Wend. 195), the Chancellor (WALWORTH) says: "If the time of payment is past and the creditor neglects to proceed, the surety himself may institute a suit in equity against the principal *602
debtor and the creditor;" and in Gibbs v. Mennard (6 Paige, 258), to which we are referred by the appellant, the same learned magistrate lays down the rule in a more general way, omitting the qualification above referred to, and this is repeated by him inMarsh v. Pike (10 Paige, 595), but in both instances he citesWarner v. Beardsley (supra), and in neither is the question decided upon such a proposition. In the first (Gibbs v.Mennard) the relief sought by the surety was denied upon the ground that the general principles by which the Court of Chancery was governed would not sustain a bill in equity against the principal on the bond "before any proceedings had been instituted against the surety for the recovery thereof." In the second (Marsh v. Pike), it appears from a fuller statement of the facts given in 1 Sandf. Ch. 210, that the surety, before suit brought, had applied to the principal debtor to pay off the bond and mortgage, and to the creditor to permit a foreclosure in his name at the surety's expense, and that these requests were refused. These cases do not help the plaintiff, for we have here, by her own showing, a creditor pursuing the usual remedy, and a debtor, the extent of whose liability is not yet ascertained. Moreover, if the defendant has in fact assumed the mortgage, he has fulfilled the agreement, and for any breach of the promise implied, therefore, the plaintiff can have, for aught that is alleged or proven, full compensation in damages for any injury she sustains. Upon this ground, therefore, the refusal of the court to interfere may be upheld. (1 Story's Eq. Jur., §§ 716, 717.) The cases cited by the appellant (Crary v. Smith,
The judgment appealed from should, therefore, be affirmed, with costs.
All concur.
Judgment affirmed.