Killam v. Jenkins

[644] The opinion of the court was delivered by Redeield, Ch. J. This is a bill for the foreclosure of a mortgage, originally given to secure a note of eighty-five dollars. The defendant, in his answer, admits the execution of the note and mortgage, and alledges payment of the note. But, as this is not responsive to the bill, it became necessary for him to prove such payment. The case was referred to the master, and the defendant did prove, aside from his own testimony, the performance of labor and other things, which the plaintiff agreed to receive, in payment, enough to balance the sum appearing due on the note, except live dollars and fifty-seven cents, and other account, which the master thinks fairly due the defendant, enough to over-balance the note— but not agreed to have been received in payment of the note. Under this state of facts, it is impossible for the plaintiff to claim a foreclosure, for more than the five dollars and fifty-seven cents, and for that, he is strictly entitled to a foreclosure. Ordinarily, in a case of this kind, where the defendant so nearly establishes a defence, either no costs should be allowed, or a very small proportion, not exceeding the amount of the debt. For, if the orator claims a foreclosure, for the full amount, and puts the defendant to proof of payment, and he succeeds in showing so nearly the payment of the entire sum, he must be regarded as having succeeded in the controversy, rather than the orator. It does not seem to us, that it can be of any avail, to allow the defendant to file a cross bill in the Court of Chancery, as an offset is not ordinarily a defence, in chancery. The decree of the Chancellor is affirmed, with leave to modify the same, in regard to costs, as he shall deem just and equitable.