to secure the payment of $2,600, upon the whole farm of which Samuel Ward died seized, as aforesaid. That neither at the time of the execution of the said mortgage, nor since, have the said Chapman S. Ward and Eleanor Ward, or either of them, claimed any interest in more than one-half of said farm. That the mortgage was drawn by the son of the said defendant, who is an attorney at law; and the said mortgagors were induced, as these plaintiffs are informed and believe, to execute the said mortgage, upon the whole farm, upon the representations of the said defendant that it was right that it should be so drawn and executed. That, as these plaintiffs are informed and believe, the defendant, Elias Dewey, knew, when he received the said mortgage, that these plaintiffs were the owners of the undivided half of the farm covered by the mortgage aforesaid. That at the time of the execution of the said mortgage, these plaintiffs were both infants, under the age of twentyone years. That the said Elias Dewey has commenced an action against the mortgagors for the foreclosure of said mortgage, to which the plaintiffs are not parties, and obtained judgment of foreclosure therein, which judgment, as these plaintiffs are informed and believe, is in the usual form, and contains a provision authorizing an execution for the deficiency over and above the amount of the sale of the property mortgaged. That said defendant has caused notice of sale of said farm to be published in a newspaper, published in the county of Schoharie, and to be posted in several public places in said town of Jefferson, of which the following is, &c: [Set forth copy or substance of notice.] These plaintiffs further say, that the said mortgage and judgment of foreclosure, so far as they purport to cover the one undivided half of the farm above mentioned, which now belongs to these plaintiffs, as the heirs at law of Samuel Ward, deceased, was without authority and unwarranted by law; that the said mortgage and judgment are now a cloud upon the title of these plaintiffs to the one undivided half of the farm aforesaid,1 and a sale of the whole farm under the judgment aforesaid would be highly injurious to the title of these plaintiffs. That, as these plaintiffs are informed and believe, the said defendant claims and pretends that the said mortgage is valid upon the whole farm, that the said mortgagors had power to execute the said mortgage as a valid, legal lien upon the whole farm, and upon the part thereof belonging to these plaintiffs, and that a sale under said mortgage will cut off all right and title of these plaintiffs, as heirs at law of said Samuel Ward, deceased. That these plaintiffs have applied, in a friendly manner, to the said defendant, and requested him not to proceed and sell the half of the farm aforesaid, belonging to these plaintiffs, and that the said defendant has persisted in declaring his determination, in disregard of the protests of these plaintiffs, to proceed and sell the whole farm under the notice aforesaid. The plaintiffs further show, that the said mortgagors claim no interest in the said farm adverse to the title of these plaintiffs to the one undivided half of said farm, and are willing that the title of these plaintiffs should be established to the said undivided half of the real estate of which Samuel Ward died seized. And that the claim made by the said defendant, and the mortgage and judgment aforesaid, operate to the injury of 1 These allegations, it is conceived, are improperly in the complaint they being mere conclusions of law. these plaintiffs, and tend to diminish the value of their interest in the premises aforesaid. The plaintiffs, therefore, pray that an injunction may be granted to restrain the sale aforesaid; also, that the title of these plaintiffs to the one undivided half of said farm may be quieted, and may be adjudged, established and declared by this court to be free and clear from any lien by virtue of the said mortgage or judgment, or any subsequent proceedings; that the said defendant may be adjudged and declared to have no interest in the one-half of said farm, and that the judgment and mortgage may be set aside, so far as they purport to cover, or to be a lien on the undivided half of said farm belonging to these plaintiffs, and that the plaintiffs may have such other or further relief as may be agreeable to equity.1 L. TREMAIN, Attorney for Plaintiffs. 1 To this complaint a demurrer was interposed, upon the grounds, mainly, that the facts set forth did not constitute a cloud upon the plaintiffs' title, and that the mortgagors, Eleanor Ward and Chapman S. Ward, should have been parties. The demurrer was sustained by Justice HARRIS, at Special Term, and overruled, on appeal, at the General Term of the Fifth District. As the question involved is one of considerable interest to the profession, and the case has not been reported, I subjoin the opinion of Justice MASON, at the General Term. The case has gone to the Court of Appeals, MASON, J. [After stating the facts of the case. ] "The real grounds of demurrer relied on, are, first, that the said mortgagors, Eleanor Ward and Chapman S. Ward, should have been made parties to the action, or one of them, at least; second, that the complaint does not contain or state facts sufficient to constitute a cause of action. The defendant, in his assignment of the causes of demurrer, goes on and merely states wherein the complaint fails to state facts constituting a cause of action. The learned Justice, at Special Term, upon the authority of the cases of Van Doren v. The Mayor of N. Y. (9 Paige, 388); Fleetwood (No. 22.) To restrain the foreclosure, by advertisement, of a usurious mortgage, and to compel the delivery up of the mortgage, and bond to be canceled.1 SUPREME COURT-DELAWARE COUNTY. John R. McLaughry James Grant and John Cowan. The plaintiff complains of the defendants, and alleges, that but a short time before the 25th day of November, This precedent is adapted from a bill in equity, in the case of McLaughry v. Cowan and others, argued at the January term, 1850, in the Court of Appeals. That court affirmed the decision of the Supreme Court, and of the Assistant Vice-Chancellor, adjudging the bond and mortgage usurious, and directing them to be delivered up to be canceled. v. The City of N. Y. ( 2 Sand. S. C. R., 475); Chautauque Co. Bank v. White (6 Barb. R., 605); Cox v. Clift (2 Comst. R., 118), sustained the demurrer and dismissed the complaint. The first case was a bill filed to restrain the collection of certain assessments in the city of New-York imposed for the purpose of laying out streets and avenues and praying for a decree declaring the assessments, and all proceedings had in relation thereto, void. The Court dismissed the bill in that, case, for the reason, that all the objections to the legality of the assessment appeared upon the face of the proceedings through which the corporation must justify the enforcement of the tax, and through which the purchasers, at sales of the land, must necessarily make title, holding that, where such valid legal objection appears upon the face of the proceedings, by which it is claimed the title is divested, there is not, in law, such a cloud upon the complainant's title as to authorize a Court of Equity to interfere, and set aside such proceedings or remove such cloud. To the same effect, precisely, is the case of Fleetwood v. 1836, the plaintiff, being in necessitous circumstances and desirous of borrowing a sum of money for his own use, The City of New-York (2 Sand. S. C. R., 475). The same doctrine is affirmed in the case of The Chautauque County Bank v. White (6 Barb. R., 605); although the bill, in that case, was sustained by the Court, as not falling within the principle of those cases. In the case of Cox v. Clift, the Court held, that where the defect complained of appeared on the face of the proceedings, to foreclose a mortgage given to the People of the State, it is not such a cloud upon the title as will authorize a Court of Equity to interfere and remove the same. This case is the same in principle as the others above stated. It is a case wherein the legal objection appears upon the very face of the proceedings which have created the cloud upon the title, and therefore can afford no ground for equitable relief. Within the same principle it is held that when the illegality of an agreement, deed, or other instrument appears upon the face of it, so that its nullity can admit of no doubt, a Court of Equity will not interfere to direct it to be canceled or delivered up, and it is a well settled rule in Equity, that such a paper cannot be regarded as creating a cloud upon one's title. Ryan v. Mackmath (3 Brown's Ch. R., 15); Gray v. Mathias (5 Ves. R., 286); Simpson v. Lord Howden (3 Myl. & Craig., 98; 1 Keen R., 583); Piersoll v. Elliot (6 Peters' R., 95, 98, 99, 100; 2 Story's Eq. Jur., §§ 700, 701, 702). Where, however, extrinsic facts are to be resorted to in order to avoid the proceedings or the instrument apparently valid upon its face, a Court of Equity will interfere and remove the cloud. (See cases above referred to; also 9 Paige, 388; 2 Sand. S. C. R., 475; 6 Barb. R., 605; 2 Comst. R., 118.) The jurisdiction of Courts of Equity in such a case, even to order the instrument to be canceled or given up, though the same may be void at common law, is too well settled to be questioned. (2 Story Eq. Jur., §§ 698 to 700; 1 John. Ch. R., 520, 424; 6 Peters' R., 95; 3 Myl. & Craig, 104, 105; 5 Paige, 493; 1 Green's Ch. R., 367; 1 Paige, 384; 10 Yerg. R., 59; 1 Hill Ch., 295.) The case under consideration does not fall within the class of cases referred to by the learned Justice who decided this case, or to which we have adverted, The mortgagors were in possession of the premises, owning, at least, one undivided half of the said premises, and executed a mortgage upon the whole, and which the defendant has foreclosed, and procured the judgment of the Court for the sale of the whole premises, and has caused notices of sale to be posted for the sale of the whole. It is |