Hamlin v. McCahill , 1 Cl. Ch. 249 ( 1840 )

The Vice Chancellor.

The course taken by the solicitor for the complainant in this cause, in relation to the defendant Bennett, was improper, unjustifiable, and almost if not quite fraudulent. From the tenor of the notice served upon Bennett, he had every reason to believe that the sale which might be made under the decree in this cause, would be made subject to Bennett’s rights under his mortgage. Bennett was therefore right in neglecting to appear. The notice that he had received, justified him in not appearing. Notwithstanding this notice, however, a decree of foreclosure is rendered against him, and a sale is made under this decree to a bona fide purchaser. This was the fault, if not worse, of the complainant’s solicitor.

After giving this notice to Bennett, he should not have taken such a decree. And there is nothing in the affidavits on the part of the complainant, which, to my mind, amounts to any thing like an excuse for this conduct. I should therefore very gladly give the petitioner all the relief upon this motion, which it was in my power to grant. But the decree in this cause was rendered more than three years since. It is regular on its face—the premises were bought in under it by a bona fide purchaser who paid his money for it, and has since made valuable improvements thereon. This money has been paid to the complainant, and is not now in court. After so long a lapse of time I cannot open this decree, particularly as against the purchaser. He has acted fairly, and without knowledge or suspicion, and must be protected. If the money was in court I could order it to be paid to the petitioner. But it is not. It has been paid to the complainant. It is out of the control of the court, and I doubt whether I can make any .order in this matter which can be enforced against the complainant. Still, the complainant has money which of right and justice belongs to the petitioner. He has obtained that money through the instrumentality of a decree of this court. Yet an order to refund upon a petition, would be an anomaly, and I think could not be enforced.

It appears from the petition, that the petitioner has filed his bill to foreclose his own mortgage. Perhaps he might look upon this fund so improperly in the hands of the complainant, as a substitute for the mortgaged premises ; and by proper amendments to his bill, might reach it in that shape, and under the proceedings already commenced by him. If he chooses so to amend his bill with a view of reaching that fund, I will grant an order on this petition, that he may so amend as he shall be advised.

Perhaps both the complainant and his solicitor, or one of them, may be liable in an action at law, for money had and received. The petitioner must take such course as he deems advisable. He" has been wronged, and I regret that I cannot give him relief here, But I do not see how I can consistently with the practice of this court.

The petitioner may have an order to amend his bill mentioned in the petition as filed by him against Richard McCahill and others, as he shall be advised, if he chooses to take such an order. 1 cannot give him costs on this motion, and I shall not tax him with costs.