Jay v. Ensign , 9 Paige Ch. 230 ( 1841 )

The Chancellor.

A defendant who does not put in an actual disclaimer is not entitled to costs, as a matter of course, under the 133d rule of this court. And a subsequent purchaser, or mortgagee, who has a subsisting interest in the premises, cannot put in a disclaimer ; which isa denial upon oath that he has or claims any right or interest in the premises against which the complainant seeks a foreclosure and sale to satisfy his prior mortgage. The object of Chancellor Sanford’s rule was to relieve the complainants, in mortgage cases, from the expense of unnecessary disclaimers, put in by defendants who W’ere merely formal parties to the suit, and against whom no personal decree was sought. And the addition to the rule, which was made in the revision of the first of January, 1830, was only intended to give the court a discretionary power, io charge costs upon the complainant ; where it appeared that his neglect to give the notice authorized by that rule had actually subjected a defendant, who had no real interest to protect in the suit, to the costs of employing a solicitor. To entitle a defendant, therefore, tcf costs under the rule, where he appears by a solicitor but does not disclaim, he must satisfy the court that he has been misled, as to the object of the suit and the relief sought against him, in consequence of the neglect of the complainant to give the usual notice ; and that his sole object in employing a solicitor was to protect himself or his property from an unjust claim which he supposed the complainant might have made against him by the bill.

In the present case there is no affidavit on the part of Sherwood to show that he was misled by this notice as to the real object of the suit. And it may be that the defendant Sherwood wras in possession of the mortgaged premises, as a subsequent purchaser, and that he employed the solicitor for the mere purpose of delaying the complainant in obtaining a decree of sale.

The application for costs is, therefore, denied. And the usual decree of foreclosure and sale must be entered ¡ with a decree over against the defendant Ensign for the deficiency, if the mortgaged premises do not sell for enough to pay the complainant’s debt and costs.