11 Paige Ch. 400 | New York Court of Chancery | 1845
The only question which arises in this case is, whether the appellant will obtain a good title to the mortgaged premises, as against the judgment creditors who have not been made parties to the foreclosure suit, but whose judgments were subsequent to the mortgage. And, upon that question, I have no doubt that the vice chancellor came to a correct conclusion. It is true the legislature, at its last session, indirectly repealed the most beneficial provision of the act of 1840, to
At the time this suit was commenced, therefore, and probably for a long time after it was in readiness for hearing, upon the pleadings and proofs, as to the defendants who made a defence, there was no necessity for making judgment creditors parties; either to foreclose their equity of redemption, or to give them a full and perfect right to the surplus moneys, if any there should
It is a general rule in the construction of statutes, that they are not to have a retroactive effect, so as to impair previously acquired rights. And courts of justice will apply new statutes only to future cases which may arise, unless there is something in the nature of the new provisions adopted by the legislature, or in the language of such new statutes, which show that they were intended to have a retrospective operation. The question was fully considered by the supreme court of this state, in Dash v. Van Kleeck, (7 John. Rep. 477,) and it is unnecessary for me to refer to the authorities which were cited and commented upon in that case. Here there is nothing in the act of May, 1844, or in the subject matter of the amendment of the former act, to indicate an intent, on the part of the legislature, that the amendment should operate upon suits then pending, and which suits had been instituted against all proper parties; to enable the complainants to obtain decrees which would be effectual to bar the equity of redemption of creditors who had
As the statute now stands, by this amendment of the 9th section, the complainant in a foreclosure suit is obliged to file a notice of the pendency and object of the suit, at least forty days before he can obtain a decree. And judgment creditors, whose liens are subsequent to the mortgage, and who are not parties to the suit, may apply tó be made parties; or they may claim a share of the surplus moneys arising from a sale under the decree, or may apply to set aside a sale under the decree, in the same manner as if they were parties to the suit. It is very doubtful, therefore, whether this court would sustain a bill, by a creditor having such a lien, to redeem the mortgaged premises from a bona fide purchaser who had given the full value of the premises, at the master’s sale; unless such creditor could show some equity beyond a mere nominal lien upon the equity of redemption at the time of such sale, even if the act of May, 1840, had been passed as it is now left by this amendment of the original act.
It is a settled principle of this court, that a party who comes into this court for equity must himself be willing to do that which is equitable. And where a judgment creditor, who is not made a party, has no defence to interpose to the bill of foreclo
But whatever may be the construction and effect of this statute, as to cases which have been commenced subsequent to the amendment, in reference to the equity of redemption of judgment creditors not made parties, but whose rights are still provided for where they are actually aware of the pendency of the foreclosure suit, I am satisfied that the judgment creditors, in the present case, have no right to redeem the premises from the sale to the appellant.
The order of the vice chancellor must therefore be affirmed with costs.
See Curtis v. Hitchcock, (10 Paige’s Rep. 399.)