Sheen v. Hogan

Mr. Justice Scott delivered the opinion of the Court: No evidence is preserved in the record, but the court found the bond for a deed from Walthem to Hogan was still in full force, and thereupon decreed a foreclosure of complainant’s mortgage, subject to the prior lien of Walthem for the purchase money, with interest, according to the agreement between the original parties. It is conceded, if the bond for a deed from Walthem to Hogan was properly declared forfeited, complainant’s mortgage was not a lien upon the premises. A forfeiture would bar whatever interest Hogan had in the property, and there would be nothing to wliich the mortgage could attach. But the court found the bond was still in force, and as there is nothing in the record to show the court found incorrectly as to that fact, it must be regarded as conclusive upon complainant. That being true, what more could complainant conscientiously ask than the decree gave him ? He had not asked, in his bill, that the court should annul the conveyance to Bridget Hogan previously made, which, if valid, would effectually cut off all interests complainant may have had in the property under his mortgage. It will be observed the decree restores the parties to their original position, and certainly that is all complainant could demand under his bill. It was equivalent to a decree that the alleged forfeiture of the bond for a deed to Hogan, insisted upon, should be set aside as having been wrongfully declared. Surely complainant ought not to be permitted to insist no forfeiture had been rightfully declared, and yet have the benefit of what was done as a fulfillment of the covenants and conditions of the bond. If there was no forfeiture of the bond for a deed, as he insists there was not, the utmost complainant could claim would be that all parties be restored to their original positions ; and that the court did by its decree. No relief was decreed to Walthem on his answer. When rightly understood the decree simply directs the sale of the mortgaged premises, subject to the prior lien in favor of Walthem for the purchase money, with the privilege to complainant to pay off Walthem’s claim and he himself subrogated to his rights in the premises. The original contract gave the vendor ten per cent per annum interest on the contract price of the property, and there was no error in decreeing that, if complainant availed of the privilege to pay the vendor’s claim, he should pay the same rate of interest the vendee was obligated to pay. Perceiving no error in the record as the case comes before us, the decree will be aflh’med. jDecree affirmed.