Van Namee v. Groot

The opinion of the court was delivered by Protjt, J. The orators seek by their bill, and upon the answers and proofs, a decree of foreclosure of a mortgage dated the 2d day of October, A. D. 1862, and executed by the defendants, Mr. and Mrs. Groot, to Mrs. Caroline C. Van Namee, the wife of Daniel A. Yan Namee. This mortgage was given to secure the performance and fulfillment of the obligations of a certain bond of the same date, executed and delivered by Mr. and Mrs. Groot, for the payment of five hundred dollars, “ upon a certain contingency, and for other purposes, according to the tenor thereof,” as expressed in the condition of the mortgage. The orators claim that the contingency, to wit, a sale by Mr. and Mrs. Groot of the premises described in .the mortgage, for a sum exceeding six thousand dollars, provided for in the bond, has transpired or happened, which entitles them, according to its terms, to payment of that part of the unpaid consideration for which the mortgaged premises were sold Mrs. Groot; and that they are entitled to a decree of foreclosure in respect to that amount. [79] The defendants insist that the orators are not entitled to such decree, because, by another contingency provided for by the bond, that in case Mrs. Groot might desire to sell the premises referred to for a sum not exceeding six thousand dollars, she should notify the orators of her desire and proposal to do so ; that she did desire and propose to sell the property for that sum and notified the orators thereof as stipulated in the bond, but that they neglected to take the property as they might, whereupon she, in connection with her husband, sold and conyeyed it to Mr. Almon Miller for that sum. This statement of the respective claims of the parties, and which they make in the cause, brings us to a consideration of the question : What effect upon the evidence is. to be given the conveyance from the defendants, Mr. and Mrs. Groot, to Miller, and from Miller to the defendant, Mr. Groot ? We encounter in the outset the conceded fact, that here is a claim for five hundred dollars, being a part of the consideration for which the property, to which it related, was sold and conveyed Mrs* Groot, which has not been paid. Under such circumstances a party to discharge himself from the*debt in a court of equity, should satisfactorily show that he is entitled to thus discharge himself from the demand. And where an equitable, if not a legal right to payment of the mortgage debt exists, the facts and circumstances upon which such discharge is claimed, as well as the motives of the parties in respect to it, as disclosed by the evidence, are to be kept in view and considered, that due effect may be given the proof relating to the question. Our examinaion of the case in this view, constrains us to believe and find that the conveyances of February 26th, 1864, from Mr. and Mrs. Groot, and from Miller to the defendant, Harvey Groot, were not made in pursuance of 'a real and bona fide sale of the property described in the orators’ mortgage, nor was there such a sale to Miller of the mortgaged premises, as is contemplated by the condition of the bond referred to ; but it was a mere scheme resorted to for the purpose of discharging the property from the demand and mortgage set up in the orators’ bill, without payment. Those conveyances, independent of the mortgage, secured the use and enjoyment of the premises to the parties entitled under the deed from the orators to Mrs. Groot, and [80] they occupied them until they were conveyed to Mrs. Thayer. And we believe and find upon the proofs that at the time Mr. and Mrs. Groot gave the notice to the orators they did, that she did not bona fide desire and propose to sell the premises for a sum not exceeding six thousand dollars, and that, consequently, the contingency had not happened that entitled her and her husband to give the orators notice of such desire, as the proof shows, they did give. The orators claim, therefore, remains an unaffected, subsisting lien, in connection with the mortgage, upon the premises therein described. The' defendants admitting that the defendant, Mr. Groot, sold and conveyed the mortgaged premises for the sum of six thousand five hundred dollars, the contingency provided for in the bond, with respect to a sale of the property for a sum exceeding six thousand dollars, has happened, and the orators are entitled to a decree pursuant to the prayer of their bill. The motion to suppress, being for leading questions put by the o rators’ counsel to their own witness, relates to a portion of the evidence of Mr. Miller, which in substance is material to the issue involved. In practice, where the motion is for causes of the character set forth, it is the- duty of the party who would avail himself of it in this court, to move it before the Chancellor, and while the cause is pending in the.court of Chancery ; that the party in whose behalf the evidence affected by the motion, may, in the event it is suppressed, on leave of the Chancellor, retake or supply it, — at least, that he may have the opportunity of applying to him for that purpose. The defendants in this case, not having called their motion to the attention of the Chancellor, and he not having made any order with respect to it, cannot avail themselves of it in this court. The decree of the Chancellor is reversed, and cause remanded to the court of Chancery, with directions to pass a decree of foreclosure in favor of the orators.