Dunkley v. Van Buren

3 Johns. Ch. 330, 1818 N.Y. LEXIS 178, 1818 N.Y. Misc. LEXIS 2

Opinion

The Chancellor.

The motion must be denied. The party, on a bill to foreclose a mortgage, is confined in his remedy to the pledge. Such a suit is not intended to act in personam • it seems to be generally admitted in the books, that the mortgagee may proceed at law on his bond or covenant, at the same time that he is prosecuting on his mortgage in Chancery; and that after foreclosure here, may sue at law on his bond for the deficiency. (Lord Redesdale, in 1 Sch. and Lef. 176. and 13 Vesey, 205. Aylet v. Hill, Dickens, 551. Took’s case, Dickens, 785. 2 Bro. 125. Perry v. Barker, 13 Vesey, 198. Dashwood v. Blythway, 1 Eq. Cas. Abr. 317.) It is supposed in some of the cases, that the subsequent suit at law for tlie remainder of the debt left unsatisfied upon the sale of''the mortgaged premises, opens the foreclosure and revives the equity of redemption. Whether that be so, is not now to be discussed; though if the point was before me I should be much inclined to agree in opinion with Judge Story, in Hatch v. White, (2 Gallis, Rep. 152.) that there is no just foundation for the doctrine ; and I should especially doubt of its application in the case of a judicial sale under the decree. It is sufficient to observe, that the present suit is the ordinary bill to foreclose, and was not intended to supply, at once, the place of a suit at law upon the bond, and a suit in equity upon the mortgage. If that was the operation of it, and if such was the course of the court, the discussion in the above cases would never have arisen.

Motion denied.