15 Vt. 110 | Vt. | 1843
The primary object of this bill is to enable the orator to be let in to redeem ; and if the orator is not entitled to this relief, that he may have the amount of the judgment, recovered by the defendant against him, for rents and profits, at the March term of the county court, 1832, with the interest, refunded to him. The bill alleges that the collection of the execution, for the rents and profits, was jprior to the expiration of the decree of foreclosure, and that the balance of the first instalment had been tendered.
The answer denies that there was everany offer, atany time, to pay the decree, under any condition, whatever, but admits most of the other material facts in the bill. It admits the collection of the execution, but, as to the precise time when paid, it is somewhat equivocal; but we think, upon a fair construction, it is to be taken, that the payment was not until after the expiration of the decree. In the case of Lovell v. Leland, 3 Vt. R. 581, it was held, upon a full review of the authorities, that a foreclosure, and an appropriation of the mortgaged premises, to the use of the mortgagee, after the time of redemption had run, was, by operation of law, a satisfaction of the debt, provided the value of the estate was equal to the debt, and if not, a payment pro tanto. In the present case, the master has reported the value of the premises to be greater than the debt.
From this doctrine, it would seem to follow that the mortgagee, could not, subsequently, at his election, proceed at law upon his mortgage debt. The mortgagor might well defend against such an action ; and, consequently, it would seem to follow, that it should not have the effect to open the foreclosure. In the case before us, the action of ejectment was commenced first in time, and the mortgagee had a right to the possession, and was entitled to recover for the rents and profits, after notice to the mortgagor to quit; and the prosecution of such suit could not have the effect to open the decree. If the execution had been collected before the decree had expired, and the orator had, before the forfeiture, tendered the balance of the decree, and it had been refused, it would have presented a different case. But as there was no tender, and the execution was not collected till after the forfeiture, it is quite clear that the mere recove
The counsel for the orator argue, that, if he is not entitled to be let in to redeem, still he should have the amount of the judgment refunded to him. The amount of the argument seems to be, that, if the execution had been collected before the decree had expired, the money would have been held in trust for the benefit of the mortgagor, to be applied on the mortgage debt; and, as the property foreclosed was, at the the time of the forfeiture, of greater value than the mortgage debt, the money, if collected after the decree had expired, (the debt having been satisfied by means of the mortgaged premises) was wrongfully collected by the defendant, and is held without consideration, and in trust for the orator. Though there seems to be weight in the argument, which, upon a proper bill, should receive the due consideration of the court, yet, as the bill alleges the collection of the execution to be prior to the expiration of the decree, and there is no pretence that there was any offer, before the forfeiture, to pay the balance, it is apparent that, in such case, the decree could not be opened, nor could the money collected be recovered back. As well might there be a recovery back of the amount, had so much been directly paid-on the decree, before it became absolute. It was the party’s fault that he did not pay the balance.
It is evident the bill was framed, in the main, with a view to be let in to redeem. The orator must stand or fall upon the case which he has made in his bill. The direct allegation, that the execution was collected before the first day of May, 1832, (the time when the decree expired) is material; and the answer of the defendant' that it was afterwards, cannot aid the orator to recover upon a case not made by his bill’; nor can the special prayer for this specific relief — the stating part of the bill not being adapted to it.
The result is, the decree of the chancellor is, for this cause, reversed, and there should be a decree of dismissal of the orator’s bill; and the cause is remitted to the court of chancery, with directions to enter up the decree accordingly.
