Chalmers v. Chambers , 6 H. & J. 29 ( 1823 )

The opinion of the court was delivered by

Earle, J.

The bill or petition in this caso, states the execution of a mortgage deed by the appellants to the appellee, and the reason of its not having been recorded witfiv in six months according to the act of assembly, and it seeks to obtain a decree for recording the said deed of mortgage, and closes with a general prayer, that the complainant may have such other and fori her relief as his case '4»ay merit. The late chancellor decreed, unless the morígage money was paid, or brought into court by a limited} time, that the mortgage premises should be sold for the payment of it, and be appointed a trustee to make the sale. Shall we affirm this decree of the chancellor? is the question.

The relief' granted' is- not the special relief sought by the-complainant; and if the decree is to be sustained, it must be under the general prayer for relief in the close of the. bill. As to the reli,ef to.be given, under a general prayer, the rule, is, that it must be agreeable to the case made by the bill, and not different from, it, qr inconsistent with it. The case made by the bill here, is., the execution of the mortgage deed, and the omissipnto have it recorded, within the period prescribed by law; and the. Relief given, is a sale of the mortgage premises, to pay the mortgage debt. Is this relief agreeable to the case made by the.bill? is the. particular point to be by us decided. In forming an opinion. on it, we have not much hesitation. Can that, relief be, said, to, b© agreeable to a case made in a bill, which, must, from its nature be founded on another and a different,case? A decree to, foreclose and sell mortgaged premises, must, be based on the nonpayment of the mortgage money, at the stipulated: .time, and q£ this the chancellor ought to be convinced when he makes the decree. It should be stated in. the bill specifically, that the defendant may not be surprised, but may have an opportunity to show the mortgage money paid and satisfied. This bill was filed about the time, the first instalment, of* the mortgage money became, due, and twelve months before the residue of it was payable; and if the case set forth in the bill had apprised the defendants of the object of the complainant to foreclose, and sell, they.-ipjght have shown the first instalment paid,, and that at the time of the filing of the bill, the complainant was not entitled to,the redress asked; by him; at least, they might have had an opportunity of showing this, which-the bill as framed deprived them of. There, must have* been, on the hearing of this case,, a tptal desertion of the. specific relief prayed, and under the general prayer, specific relief of another description asked, which is,, wholly inadmissible. The bill made for one purpose cannot be made to answer another.

DECREE REVERSED WITHOUT prejudice.