Outtrin v. Graves

The Chancellor. The application for an injunctipn. to,. stay the sale of the mortgaged premises, under the statute foreclosure, must be denied. Without going into the merits of the case upon the appeal, the presumption is that the decision of the vice chancellor was correct, and that the complainant, had. no legal or equitable claim to, a decree in his favor, in this suit. This court therefore cannot, in this summary way, review the:, decision of the vice chancellor, and grant an. injunction to stay 52 the defendant’s proceedings upon the statute foreclosure. The only course for the complainant is to pay the balance which is due upon the bond and mortgage, and the costs of foreclosure; and run the risk of recovering it back from the committee, in case he succeeds upon the appeal. And if he has any valid claim to stay the committee from parting with the proceeds of the bond and mortgage, or so much thereof as may be necessary to meet the anticipated decree in his favor upon the appeal, his remedy must be by a summary application to the vice chancellor, by whom the committee was appointed, for an order to stay, in the hands of such committee, so much of the fund as may be necessary to meet the anticipated deduction, in case the complainant succeeds upon his appeal. Indeed it was not necessary to file a bill, for the purpose of obtaining an equitable deduction from the amount apparently due upon the bond and mortgage, if any error had occurred therein, either by the fraud of the former committee, or otherwise. For as the committee was the mere officer or agent of the court in making the sale of the estate of the drunkard, the vice chancellor by whom the committee was appointed, was authorized, upon a mere petition of the purchaser, to ascertain and decide the question as to the validity of his claim to relief. And the facts of the case, if disputed, could have been ascertained by a reference to a master. The committee, however, after consenting to have the rights of the parties litigated in this suit, could not, at the hearing, object that the complainant had proceeded against him by bill, without the previous leave of the court, instead of applying to the vice chancellor, by petition, to direct the committee to make such deduction from the bond and mortgage as might be just and equitable, under the circumstances of the case. But the objection that the complainant had adopted the more expensive course of a proceeding by bill, instead of making a summary application to the vice chancellor, by petition, might have been a good ground for refusing him his costs in the suit; if he had succeeded in obtaining a deduction from the amount claimed to be due upon the bond and mortgage. The application for the injunction must be denied with $12 53 costs. But it must be without prejudice to the right of the petitioner to make such an application to the vice chancellor as he may be advised is proper, to stay the committee from paying away the moneys, which may be received by him upon the bond and mortgage, until after the décision of the chancellor upon the appeal from the decree.