Smalley v. Hickok

The opinion of the court was delivered by Collamer, Chancellor. — The decree of foreclosure was by a court having jurisdiction of the subject matter, and the parties, and was procured without fraud, and must be binding until reversed; though it is not now the usage of this court to include, in a decree of foreclosure, payments, not due, to be made in specific articles of property. [163] It is a general rule that the receiving, in whole or in part, the mortgage debt, included in a decree of foreclosure, after it has become absolute, will let in the mortgagor to redeem. But the whole of that doctrine amounts to but this, taking money for which a forfeiture has accrued, is, in chancery, a waiver of such forfeiture, and of all forfeiture then existing. This is all the authorites show. Hickok by taking the second instalment in the decree, when the first was over due, waived the forfeiture, then existing ; but that did not vacate the decree as to the subsequent instalments, which the mortgagor remained bound to pay, according to the decree. The reason for this distinction is quite obvious. A mortgagee may, by an unequivocal act or contract, with consideration, waive the foreclosure of a mortgage after it has become absolute, and, in such case, the mortgagor will be let in to. redeem. The suing for the debt is such an act; though the suing for the balance of the debt, beyond the amount of the mortgaged property, is not; — rendering an account for rents and profits is such an act-; — neither of these is pretended in this case ; — treating the debt as still on foot, as an existing debt; — this, it is insisted, was done by Hickok. The saying by the mortgagee, before the expiration of the time of redemption, that he, after that time, will receive the debt and so inducing the mortgagor to suffer the time to expire would, probably, let him in to redeem ; but his so saying, after it had expired, would have no effect, unless it was a contract made on legal and sufficient consideration. There is no allegation in the bill, nor any testimony tending to show, that the defendants made any such assurances before the decree had fully expired, and as to assurances given to Maeck, they were made after all was due and without any legal consideration. It was, therefore, to say the most, highly doubtful whether the orators had any ground for claiming to be let in to redeenl. This might claim more consideration had the orators depended on that and filed their bill to redeem, but that is not their bill. In that state of things the parties made a new contract. The orators gave their note to compromise and buy out the defendants’ claim and title and took their absolute deed. This contract thus made and executed, was made without fraud, all the facts being equally known to both parties. The note [164] was ta^en with°ut the abuse of any public authority, by the defendants. Nor was there, by the defendants, any unauthorized advantage of circumstances. That the peculiar situation of the orators’ business and other affairs induced them to en^.er jnt0 a jiar(] bargain, constitutes no reason for setting aside such contract, when that was unknown to the other party ; nor is it clear that it was even an improvident bargain. The defendants claimed that they had an absolute title. The orators claim they ought to have been let in to redeem. If this was their right they should have trusted to this right and filed their bill to redeem. But, unwilling so to do, they have given their note and taken of the defendants their deed, and must now abide by the contract. If we set aside the note, we should set aside the defendants’ deed and restore all to their former rights; but this the orators are unwilling to risk and do not ask to have done. As they insist on holding all they obtained by the contract, they should abide by its terms. Bill dismissed.