Edwards v. Bodine , 26 Wend. 109 ( 1841 )

After advisement, the following opinion was delivered:

By Mr. Justice Bronson.

Two of the children of John Bodine the elder, John and Nathaniel, died before their father, each leaving issue, and their children did not unite with the executors and six surviving children of John Bodine the elder in the deed to Yarick. This, it is said, may affect Varick’s title as to two-eighths of the property. The appellant says in his answer, he has been informed and believes that the heirs at law of John and Nathaniel, or some of them, have set up a claim to an undivided part of the premises, and that some of the heirs have actually commenced proceedings to enforce the claim; and he insists, that if the claim is valid a deduction should be made from the mortgage debt to the extent of the interest of those heirs. If any of the heirs had actually commenced a suit to recover a portion of the land the appellant would be quite likely to know it, for he has been in possession ever since the conveyance to Yarick and the giving of the mortgage. No such suit is alleged in his answer, nor has he stated that he believes the heirs of John and Nathaniel have a valid claim, or that there is any defect whatever in the title of Yarick. I very much doubt whether the appellant has made such an allegation in his answer, in relato the supposed defect of title, as would authorize the court of chancery to take any notice of the defence on which he relies. But waiving that consideration, and assuming for all the purposes of the defence, that the heirs of John and Nathaniel have a good title to an undivided fourth part of the property, that fact does not constitute a good defence to the proceeding to enforce payment of the mortgage debt. No fraud is alleged. If there is any defect of title in the mortgagor, it is the result of mutual mistake. Yarick, or what is the same thing in legal effect, the appellant, with the consent of Yarick, took immediate possession under the deed, and still continues in the undisturbed possession of the property. No one has brought any suit to question Varick’s title, and as far as we can know, none will ever be brought. But should he ever be disturbed he has an ample remedy on the covenants in the deed. More than, that, he might have sued before this time and may still sue when he pleases, on the covenant 0f seizin. If there was a serious question about the title, and a suit had actually been commenced to recover a portion of the land, chancery might enjoin the respondents from proceeding at law to collect the whole amount of the mortgage debt, until the title had been tried. Johnson v. Gere, 2 Johns. Ch. R. 546. And in such a case, where the proceedings to collect the mortgage debt are commenced in chancery, that court might perhaps stay the foreclosure suit, until there had been a trial at law. But here, as I have already remarked, there is not and may never be a suit to call in question Varick’s title. It is then, no answer, either for him or the appellant, to say peradventure the title may fail, and thus call on a court of equity to try in this collateral manner and without the proper parties a question which properly belongs to a court of law. If the ‘ purchaser has not been ousted, he must pay the mortgage debt, and take his remedy on the covenants in his deed should he ever be disturbed. The question has been settled in this state nearly thirty years, Bumpus v. Plaitner, 1 Johns. Ch. R. 213. Abbot v. Allen, 2 Id. 519. The fact that there may be now a decree in personam, as to any balance which may remain after a sale under the mortgage, does not alter the principle. Leggett v. McCarty and Wife, 3 Edwards’ Ch. R. 124. There could be no doubt about the matter, if there had been no decision on the point since the Revised Statutes took effect. The principle laid down by Chancellor Kent is, that the alleged defect of title must be tried at law:, and if the mortgagor remains in the undisturbed possession of the property, he must pay the mortgage debt. The creditors may resort to the bond as well as the mortgage, and there is no relief in equity. • vThis covers the whole ground. I might discuss this matter upon principle, but I have thought it enough to show how the question stands upon authority. I shall vote for the affirmance of the decree.

On the question being put, Shall this decree be reversedl all the members of the court present who had heard the argument answered in the negative. Whereupon the decree of the Chancellor was Affirmed.