Yglesias v. Dewey , 15 Dickinson 62 ( 1900 )

Pitney, V. C.

In my judgment the effect of the power of attorney and the possession taken and held under it was to make the defendants mortgagees in possession of the complainant’s share of the premises, and to defeat any present right of possession on her part until the repayment of the sums of $130 and $200 mentioned in the deed. The complainant, then, is neither in possession, nor is she entitled, in equity, to the immediate possession of the premises. The same result arises from the mortgage given by complainant to her brother Richard, set forth in the bill. She cannot claim possession as against it.

For these reasons, according to all the authorities, the latest expression of which is Smith v. Gaines, 12 Stew. Eq. 545, she is not entitled to call for a partition. In the cases which hold that an outstanding mortgage given by a complainant in partition was no bar to the action, the complainant was in possession. Kline v. McGuckin, 9 C. E. Gr. 412.

But, independent of the fact that the defendants are in possession of complainant’s share as her mortgagees, I think that her covenant not to bring partition is a good and binding one. Under the circumstances it was quite reasonable, and it was the condition upon which the defendants advanced the loan to her. It was part and parcel of the contract. The authorities upon this topic are collected in Freem. Co-ten. & P. (Sd ed.) § 442.

I think the facts set up in the plea furnish a complete defence to the complainant’s bill, and the motion to strike out is refused.