Millandon v. Brugiere

11 Paige Ch. 163

• Court: New York Court of Chancery
• Decided: August 6, 1844
• Status: Published

Opinion

The Chancellor.

The objection that the appellant has no interest in the fund in controversy, and has therefore no right to appeal, is not well taken. He has been made a defendant in the foreclosure suit, as having an interest in the equity of redemption of the mortgaged premises. And as assignee in bankruptcy of the mortgagor he is prima facie entitled to the surplus proceeds of the sale. The affidavit as to the supposed right of E. Tes-siere, to- the equity of redemption, the appellant has had no opportunity to answer; and the deponent himself billy testifies as to his information and belief. The question of right between the different claimants of the fund, as owners iff the equity of redemption in the mortgaged premises,, therefore, canntit be settled upon this appeal. And the prima facie evidence of right in the appellant, as the assignee in bankruptcy of the mortgagor, is sufficient to entitle him to appeal frofn the ordef of the vice chancellor, if the same is erroneous.

Upon the merits of the case, I am unable to discover any grounds on which the order to pay the costs of Selden, out of the fund belonging to the owner of the equity of redemption, can be sustained. If the respondent was improperly made a defendant in the foreclosure suit, when he had a good defence against the claim made to a decree over against him for the anticipated deficiency, the complainant himself should have been charged with the costs to which Selden had been improperly subjected. And the latter, instead of entering into an agreement with the complainant to permit him to abandon an unfounded claim without costs, should have insisted upon having his costs paid by the complainant. On the other hand, if he was properly made a defendant, and had no valid defence to the complainant’s contingent claim to a decree over against him for the anticipated deficiency, there is no good reason for charging the costs of an improper defence upon the fund belonging to the mortgagor, or to his assignee.

Again; if the respondent had any claim to have the costs of his defence paid out of the proceeds of the mortgaged premises, the proper time for him to ask for such costs was at the time of the hearing of the cause and the entering of the final decree therein. And having consented to the usual decree without asking for costs at that time, and having no claim upon the surplus proceeds of the sale, as an incumbrancer upon or owner of the equity of redemption, the order for the payment of his costs out of a fund belonging to others was erroneous.

The older appealed from must therefore be reversed; and the petition must be dismissedj with costs as to the defendant Waddell.