Stewart v. Hutchins

By the Court, Sutherland, J. The revised statutes declare that no action of ejectment shall (hereafter) be maintained by a mortgagee, or his assigns or representatives, for the recovery of the possession of the mortgaged premises. 2 R. S. 312, § 57. This language is exceedingly broad and comprehensive, and embraces, in terms, every description of mortgage which could previously have been made the foundation of an action of ejectment. The counsel for the plaintiff however, contends that it applies only to gmortages in the [487] usual form, which are accompanied by a bond.or other ty ior the payment of money, and which also contain the usual power of sale. That the object of the legislature was to prevent the cumulative remedies of an action of ejectment, a foreclosure of the mortgage under the statute, and an action upon the bond, from being pursued at the same time. It is probably true that this species of oppression was the evil which the legislature had principally in view in this and other enactments upon the subject of mortgages. They have also provided that no foreclosure shall take place under the power of sale pending a suit at law, to recover the debt which the mortgage was given to secure. But although mortgages, in the ordinary form, may have been principally in view of the legislature, in framing these provisions, there is no such violation of principle, in applying them to mortgages of every description, nor will such in conveniences result from such application, as to justify the court in holding that the legislature did not mean what their language clearly and unequivocally imports. I do not understand the plaintiff as denying that the deed under which he claims is a mortgage in the broad legal sense of the term. It is unquestionably to be so regarded. It contains the following defeasance : “ Provided always, and these presents are upon this express condition, that if the said parties of the first part (Henry Tomb and his wife) pay off and discharge the several legacies bequeathed by the last will and testament of James Tomb, deceased, to the legatees therein mentioned, and in the manner therein specified, and which said legacies are charged on the lands devised by the said will to the said Henry T omb, apart of which saidlandhas been conveyed by the said parties of the first part to the said party of the second part, (George Stewart,) then these presents shall cease, and be null and void.” The mortgagee had purchased from the mortgagor certain lands which were chargeable with certain legacies, which the mortgagor was bound to pay. To secure themortgagee againstthe chargeofthoselegaciesupon his land, this mortgage or conditional deed was given upon other lands. The authorities are clear that it is to be considered and treated as a mortgage. 4 Johns. R. 186. 15 id. 205, [488] 555. 2 Johns. Ch. R. 182. 6 id. 417. 7 id. 40. 2 Cowen, 324, 195. 3 Wendell, 208. Nor do I perceive any difficulty on the part of the plaintiff ™ foreclosing this mortgage in equity. The condition of the mortgage is. that if the mortgagor does not discharge Certain legacies according to the provisions of a certain will, then the estate of the mortgagee shall become absolute. If the mortgagor, upon being properly brought into a court of equity,fails to show that he has discharged the legacies, his equity of redemption will be foreclosed, and the estaje of the mortgagee will be rendered perfect. It is probably a case for a strict foreclosure, and not for a sale. There can be no doubt that the plaintiff has an adequate remedy in equity. The plaintiff was properly nonsuited, and the motion for a new trial must be denied.