The Chancellor.
The sale of the whole of the mortgaged premises was indispensable in this case, because they were not capable of being sold in parcels, or of being divided, without manifest injury to all the parties concerned. When the whole premises are thus necessarily sold, it is the direction of the statute, (1 N. R. L. 490.) that the Court apply the proceeds of the sale not only in payment of the interest, instalment, or portion due, but towards payment of the whole, or residue of the demand, which hath not become due, or payable, provided the same bears interest. But this provision is made for the necessity of the case, and more than is due is not to be' raised out of the mortgaged premises, when that necessity does not exist. If the mortgagor; or the party holding the equity of redemption, comes before the sale, and brings in the amount due, with costs, there is • no justice or equity in suffering the sale to proceed. It has been the practice of the Court, since I have sat here, to stay the sale in such cases, and to let the decree of foreclosure remain good to enforce payment of the future interest and instalments, as they may respectively become due. When such an application was made, before answer, in Lansing v. Capron, (1 Johns. Ch. Rep. 617.) I required, as a condition of the rule, a decree of foreclosure to be entered by way of security, and to save the trouble and expense of a new suit; but this is the utmost length to which any proceeding in the cause has been carried, after payment of the amount due, with the costs.
Though there be a regular decree of sale in this casé, there can be no doubt of an adequate power in the Court, in its discretion, to regulate the process of execution under ' the decree. To sell, after satisfaction of the decree, would [537] be gross abuse; and the whole inducement to the sale is to obtain satisfaction of the sum actually due. The object of v v the decree was not to raise any part of the debt not due; , . . /> , *ii i yet, the raising oi the entire debt may become an unavoidable consequence of the sale, because, the Court, in order to raise what is due, is obliged to sell the whole of the mortgaged premises, as they happen to consist of one entire subject, incapable of being conveniently, or safely divided. If this necessity can be avoided, before the sale, by the voluntary payment of what is due, the present object of the decree is satisfied, and all that the party can, in conscience, require, is, that it may remain as a security, for subsequent defaults, and afford him an easy and prompt remedy, when they occur.
A Court of law, after judgment and execution for the entire debt, will relieve the defendant, on paying the instalment due, but will retain the judgment as a security for the future instalments. (Judd v. Evans, 6 Term, Rep. 399.) This is an equitable construction of the statute of 4 Anne ; and surely this Court will not turn a deaf ear to the equity of the case, and adopt a more than common law rigour.
But the petition states, that the petitioner is not only a mortgagee in trust, but a surety for the mortgagor, and that the mortgaged premises are in a state of injury and decay, from the action of storms, and have thereby become a precarious security. I do not perceive that this circumstance gives him any right or title, in equity, to have the premises sold for a debt not due. The security was taken with knowledge of the situation and character of the property, and of the risks to which it was exposed. It does not belong to the Court to give a party better security than he elected to take, where there has been no fraud or mistake, nor any abuse or waste of the subject. I am not informed that there exists any precedent of a bill quia timet,- adapted to such a case.
[538] All the cases in the English law, in which even a surety may file a bill quia timet, are those in which the debt ivas due from the principal debtor; and I do not know of any principle of equity that will justify us in giving aid to the surety, before the debt is due, when the parties have not provided, in their contract, for such a case.
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The Chancellor.
The sale of the whole of the mortgaged premises was indispensable in this case, because they were not capable of being sold in parcels, or of being divided, without manifest injury to all the parties concerned. When the whole premises are thus necessarily sold, it is the direction of the statute, (1 N. R. L. 490.) that the Court apply the proceeds of the sale not only in payment of the interest, instalment, or portion due, but towards payment of the whole, or residue of the demand, which hath not become due, or payable, provided the same bears interest. But this provision is made for the necessity of the case, and more than is due is not to be' raised out of the mortgaged premises, when that necessity does not exist. If the mortgagor; or the party holding the equity of redemption, comes before the sale, and brings in the amount due, with costs, there is • no justice or equity in suffering the sale to proceed. It has been the practice of the Court, since I have sat here, to stay the sale in such cases, and to let the decree of foreclosure remain good to enforce payment of the future interest and instalments, as they may respectively become due. When such an application was made, before answer, in Lansing v. Capron, (1 Johns. Ch. Rep. 617.) I required, as a condition of the rule, a decree of foreclosure to be entered by way of security, and to save the trouble and expense of a new suit; but this is the utmost length to which any proceeding in the cause has been carried, after payment of the amount due, with the costs.
Though there be a regular decree of sale in this casé, there can be no doubt of an adequate power in the Court, in its discretion, to regulate the process of execution under ' the decree. To sell, after satisfaction of the decree, would [537] be gross abuse; and the whole inducement to the sale is to obtain satisfaction of the sum actually due. The object of v v the decree was not to raise any part of the debt not due; , . . /> , *ii i yet, the raising oi the entire debt may become an unavoidable consequence of the sale, because, the Court, in order to raise what is due, is obliged to sell the whole of the mortgaged premises, as they happen to consist of one entire subject, incapable of being conveniently, or safely divided. If this necessity can be avoided, before the sale, by the voluntary payment of what is due, the present object of the decree is satisfied, and all that the party can, in conscience, require, is, that it may remain as a security, for subsequent defaults, and afford him an easy and prompt remedy, when they occur.
A Court of law, after judgment and execution for the entire debt, will relieve the defendant, on paying the instalment due, but will retain the judgment as a security for the future instalments. (Judd v. Evans, 6 Term, Rep. 399.) This is an equitable construction of the statute of 4 Anne ; and surely this Court will not turn a deaf ear to the equity of the case, and adopt a more than common law rigour.
But the petition states, that the petitioner is not only a mortgagee in trust, but a surety for the mortgagor, and that the mortgaged premises are in a state of injury and decay, from the action of storms, and have thereby become a precarious security. I do not perceive that this circumstance gives him any right or title, in equity, to have the premises sold for a debt not due. The security was taken with knowledge of the situation and character of the property, and of the risks to which it was exposed. It does not belong to the Court to give a party better security than he elected to take, where there has been no fraud or mistake, nor any abuse or waste of the subject. I am not informed that there exists any precedent of a bill quia timet,- adapted to such a case.
[538] All the cases in the English law, in which even a surety may file a bill quia timet, are those in which the debt ivas due from the principal debtor; and I do not know of any principle of equity that will justify us in giving aid to the surety, before the debt is due, when the parties have not provided, in their contract, for such a case.
The question on this subject, so often raised in the civil law, assumed the fact, that the principal debtor was in default ; Si diu in solutione reus cessavit; and when it is added, aut eerie bona sua dissipavit, the reference was still to the case in which the debtor had failed to pay, and was, also, wasting his goods. I apprehend, this must be the true con-, stvuction; for the only question raised by Marcellus, in the text referred to, (Dig. 17. 1. 38. 1.) was, whether the surety could seek indemnity before he had himself paid, fide jussor an et prius, quam solvat, agere possit, ut liberetur ? It was a very equitable provision in the civil law, to afford a remedy to the surety when the debtor neglected to pay, though the creditor had not required payment, and though the surety had not actually ádvanced the debt; but it would not have been very just to have 'given the surety an action for indemnity against the debtor, before the latter was in default, and when such a previous claim made no part of the original contract. The debtor, as the civil law truly observes, in another place, (Dig. lib. 17. 1. 22. 1.) has an interest not to be compelled to pay before the day ; and yet, I perceive, that several writers on the civil law (Domat. part 1. b. 3. tit. 4. sec. 3. n. 3. Wood’s Institutes of the Civil Law, p.227. Brown’s Lectures on the Civil Law, vol. L 362.)