Livingston v. Painter

19 Abb. Pr. 28, 43 Barb. 270, 28 How. Pr. 517

Opinion

By the Court.

*—Sutherland, J.

The agreement of Painter, the holder of the second mortgage, if he bought “ in his own name or otherwise,” at the sale under -the foreclosure of his mortgage, that then he should and' would reduce the principal sum secured by the first mortgage (held by Hamilton as executor, &c.), by paying on account of the same $3,000, was a lawful and valid agreement, for a sufficient and lawful' consideration ; the consideration being the agreement of Hamilton to waive his option of considering the whole principal of his mortgage due and payable for non-payment of interest; and Painter avers in his answer that Hamilton in fact waived his option to consider the whole principal due, by actually, soon after the making of the agreement, receiving from him the interest. It is easy to see that this waiver by Hamilton of his right to foreclose his mortgage for the whole principal and interest might be, and probably was very beneficial to the holder of the second mortgage.

The complaint alleges in substance, that on the sale under the foreclosure of Painter’s mortgage, the defendant Boyes purchased the mortgaged premises or interests, and took the sheriff’s deed in his name, at the. instance and for the benefit of Painter, and with full knowledge of the agreement between Painter and Hamilton, for the purpose of enabling Painter to evade the agreement; and that Boyes paid no money, but gave a mortgage to Painter for the whole amount of the purchase-money.

The specific relief asked by the complaint is,—1st. That the sheriff’s deed to Boyes he declared fraudulent, inoperative, and void, so far as it prevents the specific performance of the agreement by Painter' to reduce the principal of the first mortgage by paying the $3,000 on account thereof; 2d. That the defendant Painter be adjudged to reduce the principal of the mortgage by paying the $3,000 on account thereof. The complaint also asks for general relief.

It is plain, I think, that the complaint shows a prima-facie right in the plaintiff (Hamilton’s assignee) to come into a court of equity, at least, for the purpose of obtaining the relief first specifically asked for; and if so, it is perfectly clear that a court of equity having jurisdiction for such purpose could proceed and give the relief secondly specifically asked for, though the plaintiff might have obtained such last-mentioned relief in a court of law. .

But I do not see how the plaintiff could have obtained this relief in a court of law. The relief is, that Painter be decreed to reduce the principal of the mortgage according to his agreement by paying $3,000 on account of the principal.

Certainly, a court of law could not grant this relief. The plaintiff asks for a specific performance of this agreement, and I think the proceedings show, prima facie, that he has a right to it,

I do not see how the plaintiff could recover any thing beyond nominal damages, at law, without showing that his mortgage had been foreclosed for the whole principal, and that the mortgaged premises or interests did not bring sufficient to "pay the mortgage.

It appears to me that the plaintiff’s complaint was inadvertently dismissed, as it was, on his opening and the pleadings; and that the j udgment should be reversed, and a new trial ordered, with costs to abide the event of the action.

Ingraham, J.

Even if the prayer in the complaint was merely for a sum of money, the facts averred therein show a good cause of action in equity, in which plaintiff was entitled to relief.

If so, and the court had jurisdiction, it could give such, relief as the party was entitled to, including a judgment for money, if proper.

I concur in reversing the judgment.

Present, Ingraham, P. J., Clerks and Sutherland, JJ.