1 N.J. Eq. 534 | New York Court of Chancery | 1832
The complainant has set out an equitable right. According to his statement, the conveyance, when coupled with the agreement, is, in equity, nothing more than a mortgage, and he is entitled to redeem on payment of the amount due. He alleges that he tendered the debt and interest, first to the principal, Richards, and then to Evans the agent, and that both tenders were made within the year. Richards declined receiving the money tendered, without first seeing the agent; and the agent, when called on, declined receiving it, and said it must be paid to the principal. These facts are substantially admitted by the answer. Richards says he agreed to consider the tender lawful, so far as respected the amount due, but was unwilling to receive the money, or give any receipt for it, until he could hear from his agent. And Evans says, that shortly after this, but at what particular time he cannot recollect, the tender was
The complainant is to be considered in this couit in the light of a mortgagor. His situation is not altered by the fact that Richards (as stated in the answer) originally held a mortgage against him, and that upon an arrangement made between them, the complainant agreed to give him, and did actually execute and deliver to him, an absolute deed, on receiving an agreement in writing that he should be at liberty to redeem by paying the money due in one year. The conveyance could operate only as a mortgage in equity, and the agreement, so far as it restricts the right of redemption to one year, is void. The principle is well settled, that all such restrictions are void. Whenever it can be clearly shown to be the intention of the parties, that real estate, when conveyed, shall be subject to redemption, it is considered as a mere security; and the right of redemption cannot be confined to a limited time, or to a particular class of persons. In Kilvington v. Gardner, 1 Vern. 192, it was decreed, that although the condition of the mortgage was to redeem during the life of the mortgagor, the heir might redeem notwithstanding. In Clinch v. Witherly, Cas. Temp. Finch, 376, there was a surrender of a copyhold estate to the use of A. B., without any condition expressed in it, but a judgment was given at the same time as a further security; and it was agreed by a note in writing, that if the mortgagor should within a twelve-month pay back the consideration money of the surrender, that he would yield up the copyhold and acknowledge
Considering Richards, the defendant, as a mortgagee in possession, he is not authorized to cut down timber and commit waste upon the premises. No act prejudicial to the estate can be justified in equity. Even if the proceeds of the timber cut were appropriated to the extinguishment of the debt, it would be very questionable policy to allow the mortgagee to pay himself his debt out of the property, according to his own ideas of right: Harson v. Derby, 2 Vern. 392; Farrant v. Lood, 3 Atk. 686; 1 Pow. on Mortg. 188-9; Eden on Inj. 118.
Were there no other facts in the case, I should feel no difficulty in retaining the injunction until the hearing, on the ground that Richards is a mere mortgagee in possession* and therefore
This appears to me a complete answer to the charge of fraud. And it is not new matter, which, according to the practice of the court and the reason of the thing, cannot avail the defendant on this motion. It is directly responsive to a material allegation of the bill. The defendant, in denying a charge against him, has a right to state the whole transaction.
In making this arrangement, it appears that Wayne undertook to actas the agent of Youle, the complainant; who now insists that Wayne was not authorised. But we are to take the defendant’s answer as true, upon the present inquiry ; and it shows, not only that Wayne acted as agent, and made the contract as such, but that the contract was not completed until he produced the written authority of Youle himself to receive the stipulated sum of money, and also produced the original agreement or de-feasance to be cancelled. This could not have been done without the knowledge and approbation of the complainant.
As the case is presented upon the bill and answer, the title of the defendant is complete, and there is no ground for continuing the injunction.
Injunction dissolved.