Chapman v. Draper

10 How. Pr. 367

• Court: New York Supreme Court
• Decided: July 1, 1854
• Status: Published

Opinion

Roosevelt, Justice.

The demurrers, it seems to me, are well taken. It is said they ought to be compelled, when they come to foreclose, to sell first the lots not embraced in plaintiff’s contract. But it is not alleged that they intend to do otherwise. They have done no wrong to the plaintiff, and threaten none. Their rights, too, are paramount to his, and he‘had legal notice of those rights when he made his purchase. Sic utere tuo ut alienum non loedas, is a maxim, I admit, both of . law and of morals. But in this case there is no pretence that the prior mortgagees contemplate so using their own as to injure their neighbor’s. When they commence their foreclosure suits ■—should they ever do so—they will, no doubt, conduct them with a due regard to the equities of all parties. It will be time enough to act on a contrary presumption when a contrary purpose is developed. To allow each purchaser of a single lot, out of nearly two hundred, to involve the innocent mortgagees of the whole tract in as many law suits, by anticipation, as there are lots, would be as oppressively unjust, as it is palpably unnecessary. Such a practice once established, and generally understood, would render loans on blocks, or parcels of lots, nearly, if not entirely, unattainable, and the securities, if taken, unavailable, unless at a ruinous discount.

The plaintiff’s bill, therefore, as against the defendants, Edward C. West and The Society of the New-York Hospital, must be dismissed with costs.