Dwight v. Webster

10 Abb. Pr. 128, 32 Barb. 47, 19 How. Pr. 349

Opinion

Leonard, J.

—This action is brought to foreclose a mortgage, containing a clause making the whole principal sum due, in case the interest shall remain unpaid for a certain number of days after it has become due.

The complaint alleges a default in the payment of the interest under this clause.

The answer admits this default, but alleges, as an excuse, that the defendants were unable to find the holder of the mortgage until after the period required for the payment of interest, in order to prevent the whole principal from becoming due, had expired. A judgment by default has been taken at special term, which the defendants now apply to the court to set aside.

If the answer set up a valid defence, the motion ought to prevail.

The answer does not allege any trick or fraud on the part of the plaintiff to prevent the payment of interest. It simply presents the misfortune of the defendants in being unable to find the plaintiff in season.

This does not present any fault on the plaintiff, which would prevent him from insisting on a fulfilment of the terms of the mortgage. Nor is it such an accident or misfortune as will enable the court to afford the defendants any relief.

The case of Ferris a. Ferris (16 How. Pr. R., 102) is decisive of this question.

It is not necessary to refer to the other facts contained in the affidavits, as the view which I have taken of the answer is conclusive against the legal force of the whole defence.