Bancroft v. Sawin

9 N.E. 539, 143 Mass. 144, 1887 Mass. LEXIS 241

• Court: Massachusetts Supreme Judicial Court
• Decided: January 4, 1887
• Status: Published

Opinion

C. Allen, J.

We have no doubt that, in case of gross or improper delay between the time of filing the bill and of the taking out or service of the subpoena, a court of equity, in the exercise of the judicial discretion belonging to it, may refuse its assistance to the plaintiff, and direct the bill to be taken off the file. Such also is the plain intimation of several English and Irish decisions. Coppin v. Gray, 1 Y. & C. (Ch.) 205, 209. Boyd v. Higginson, Flan. & Kel. 603, 613. Forster v. Thompson, 4 Dru. & War. 303, 318. The plaintiff does not dispute this as a general doctrine, but contends that, under the statutes applicable to bills to redeem, the plaintiff, after filing his bill, is in court, and is entitled as of right to have the court proceed, and ascertain and determine whether any, and what, sum not in dispute is due on the mortgage. Pub. Sts. c. 181, § 28. It was not, however, the intention of this statute to provide that a mortgagor shall be entitled to his remedy of a bill in equity to redeem, if by the application of legal or equitable rules he is cut off therefrom; but rather to define the method of proceeding in cases where the plaintiff has a right to proceed. It was long since held, in Fay v. Valentine, 12 Pick. 40, that a mortgagor might be debarred by estoppel from his right to redeem; and, ’ on similar grounds, it may well be held that the plaintiff in the present case had lost his right by his delay to prosecute his suit after commencing it. To hold otherwise would be to sanction a gross abuse of the equitable remedy provided for those who act in good faith and with reasonable promptness.

Bill dismissed.