31 Barb. 364 | N.Y. Sup. Ct. | 1860
It was scarcely denied, by the plaintiff’s counsel upon the argument, that this action, so far as it sought to enjoin and restrain the defendant Ayrault from prosecuting his action, commenced and pending in the state of Ohio, could not be maintained. This may now, I think, be regarded as the settled rule in this country, whatever may he the rule in
It is claimed, however, on the part of the plaintiff, that conceding this to he so, the complaint should not have been dismissed, and the plaintiff nonsuited, but that the action should have been tried, and the other relief, demanded in the complaint, decreed in the plaintiff's favor, if he shall be entitled to it upon his proofs. It does not appear from the case upon what ground the complaint was dismissed, at special term, and judgment ordered for the defendant. The defendant, amongst other defenses in his answer, sets up as a defense, the pendency of an action in the state of Ohio, in which he is plaintiff and Williams and Chamberlin are defendants, to enforce the collection of the demands mentioned in the complaint, including the mortgage in question, in which action the defendants, by way of defense, have set up the same matters alleged in the complaint in this action as the ground of the relief demanded. The same matter also appears from the complaint, and it is to be taken as true. But that constituted no ground for dismissing the complaint, if the plaintiff was otherwise entitled to maintain his action. A plea of a suit pending for the same matter, in a foreign state or country, is no bar to an action here, either in equity or at law. (Lord Dillon v. Alvares, 4 Ves. 357. Foster v. Vassel, 3 Atkins, 587. 1 Barb. Ch. Pr. 125. Bowne v. Joy, 9 John. 221. Walsh v. Durkin, 12 id. 99. Burrows v. Miller, 5 How. Pr. R. 51. Cook v. Litchfield, 5 Sand. 330.)
The exceptio rei judicata applies only to final judgments abroad, upon the merits of the action. But an action to recover the debt, to secure which a mortgage is given, or even to foreclose a mortgage, and an action to compel a party to surrender a mortgage, to be canceled and discharged of record, are different actions entirely, and were never regarded, or held, ■to be actions for the same matter. Indeed the principal object,
The only question, as I conceive, as to the right of the plaintiff to maintain the action, which presents any difficulty) is whether facts enough are alleged in the complaint to make out a case of equitable cognizance. It is not every case of an usurious obligation which will authorize a party to it to come into a court of equity, to have it surrendered up and canceled. As a general rule, he cannot come into a court of equity for that species of relief, if he has a perfect remedy at law. And if there are any circumstances in the case by reason of which
It is urged hy the defendants’ counsel, as a sufficient objection to the maintenance of the action, that there is no specific allegation in the complaint, that the plaintiff was, at the time of the execution and delivery of the mortgage, the owner of the mortgaged premises, or that he is now the owner thereof. But this, I think, sufficiently appears from the complaint. It is distinctly alleged that the plaintiff owned the property mortgaged, at the time of making the corrupt agreement, and the mortgage is referred to and made part of the complaint, by annexing a copy thereof as a schedule. From this copy it appéars that the plaintiff covenanted in the mortgage that he was, at the time of its execution and delivery, the owner in fee of the premises therein described. It is true that it is nowhere alleged, in terms, that the plaintiff, at the time of the commencement of the action, held the title to the mortgaged premises. But the law will presume that the title remained as it was at the time the mortgage was made, until the contrary is in some manner alleged or proved. No such defense is interposed in the answer, and I think it was not a valid objection to the plaintiff’s proceeding with the trial of his action, at that stage, upon the issues made by the pleadings. It can scarcely be pretended that the facts stated in the complaint failed to constitute a cause of action, by reason of the absence of that distinct averment. The dismissal at the special term was not, I apprehend, put upon any such ground, but upon the ground that the complaint failed to show that the plaintiff had not a perfect remedy, by a defense to an action brought to recover the debt. If this was unnecessary, as I think it most clearly was, in an action to compel a mortgagee to cancel, and discharge of record, an usurious and void mortgage which has been recorded, the decision at special term was erroneous.
The complaint, upon any fair and reasonable construction, phows the execution of the mortgage by the plaintiff, upon his
Knox, J. concurred. E. Darwin Smith, J. dissented.
New trial granted.
Smith, Johnson, and Knox, Justices.]