Van Waggoner v. McEwen

The Chancellor. The defence set up cannot avail the defendant in this action. Here is no eviction or disturbance of the defendant, or even ejectment brought, and there never may be. If a suit was pending to try the title, or the defendant had been dispossessed, there would be propriety in resisting the foreclosure of the mortgage. This distinction is recognized in the case of Johnson v. Gere, 2 John. Chan. R. 547, and in Shannon v. Marselis and others, Saxton, 426. Should the heirs of Tuers hereafter dispossess the defendant, he must resort to his action on the covenants in his deed. This court will not undertake to settle the question of title between the defendant and the heirs of Tuers. The heirs are not even parties here, and without first settling that question the defence set up is of [414] no avail whatever. The whole case made is nothing more than an allegation of .an outstanding title. There must be .a reference to a master to ascertain the amount due on complainant’s mortgage. '.Order accordingly..