Smith v. Smith , 1 Paige Ch. 392 ( 1829 )

The Chancellor:—The bill charges that Clark is not a bona fide assignee of the bond and mortgage, but took it subject to the equitable claim of the appellant under the bond given to secure to him the enjoyment of the good will of the practice, which he purchased at the time the bond and mortgage was given. The answer, which in this respect must be considered as responsive to that charge in the bill, alleges that Clark had a judgment hen on the mortgaged premises, which he agreed to relinquish, on condition that the bond and mortgage should be assigned to him to secure the debt; and they were delivered over to him accordingly, immediately after their execution. This equity of the defendant Clark is prior in point of time to any which the appellant can have on account of a breach in the condition of A. Smith’s bond to him. As between equal equities, the maxim qui prior est in tempore potior est in jure, applies. If, in addition to this, the party-having the prior equity has also the legal right, it would be contrary to the settled principles of this court to interfere and deprive him of it.

*The amount of the instalment now due is less than the judgment lien which Clark relinquished at the time the bond and mortgage were given. The circuit judge was correct in requiring payment of that amount as a condition of the continuance of the injunction. The decretal order must be affirmed with costs; and the injunction must be dissolved, unless the conditions of that order are complied with in thirty days from this time. And the cause must be remitted back to the equity court, to be further proceeded in there.