Leggett v. M'Carty

3 Edw. Ch. 124

• Court: New York Court of Chancery
• Decided: June 1, 1837
• Status: Published

Opinion

The Vice-Chancellor :

According to the case of Abbot v. Allen, 2 J. C. R. 519—and the same principle is found in Bumpus v. Plainer, 1 Ib. 213—the defendant could not file a bill to be relieved from the payment of his bond and mortgage, upon such facts as are stated in his answer; and if these facts would form no ground for relief in this court were the mortgagor a complainant here, either with an original or a cross bill, then, surely, they cannot be permitted to avail him as a defendant when set up in his answer.

There is nothing in this case to distinguish it from Abbot v. Allen. The circumstance that the mortgagor is here a defendant, instead of a complainant, can make no difference in principle. Fraud, in the sale by the complainant to the defendant, is not alleged. The defendant must resort to his remedy at law for any breach of the covenant of seisin, &c.; and until he has been evicted or an action to deprive him of the possession has actually been commenced, as in Johnson v. Gere, 2 J. C. R. 546, the court of chancery will not interfere to stay proceedings on his bond and mortgage. While he holds possession, it would be unreasonable to say he ought not to be called upon to pay the mortgage debt.

The usual decree must be entered, referring it to a master to compute the amount due ; and for a sale, upon the coming in and confirmation of the master’s report.