32 N.J. Eq. 233 | New York Court of Chancery | 1880
This suit is founded on a mortgage made by the defendant to one Henry Johnson, bearing date March 30th, 1872, and payable April 1st, 1873. Johnson sold the mortgaged premises to the defendant, and the mortgage was given in payment of part of the purchase-money. The defence set up is this: That the mortgage does not, in a material point, conform to the contract'under which it was given. The defendant says that, at the time he made the purchase, he told Johnson he could not purchase if he was to be required to’put the property in repair and also pay the principal of the mortgage to be given, during Johnson’s life, and that thereupon Johnson agreed that the mortgage should not be due and payable during his life, provided the defendant kept the interest paid up and put the property in repair and kept it so.
On the final hearing the defendant offered to show an oral contract substantially like that set up in his answer. His evidence was held to be inadmissible, and his defence unavailable, without a cross-bill seeking to reform the mortgage. Leave to file a cross-bill was not asked, nor was it intimated that, if further proceedings in the suit were temporarily delayed,-a cross-bill wmuld be filed. The answer imputes no fraud or wrong to Johnson in the preparation or execution of -the mortgage. It does not charge that Johnson had the mortgage drawn, or was present at its execution. It is silent as to who procured the mortgage to be drawn, and it must therefore be presumed that it was drawn at the instance, and according to the instructions, of the person who executed it. If the mortgage contains a mistake, it would seem to be pretty clear that the complainant is not responsible for it.
Even fraud in the consideration of a mortgage, which does not go to the extent of completely overthrowing the instrument, can only be made available to a defendant in a foreclosure suit by cross-bill. Miller v. Gregory, 1 C. E. Gr. 274 ; O’Brien v. Hulfish, 7 C. E. Gr. 471.
The defendant’s evidence is inadmissible, and the complainant is, consequently, entitled to a decree.