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N. Y. Superior Court.-Platt v. Gitchrist aod others.

to collect the mortgage debt are commenced in chancery, that court might, perhaps, stay the foreclosure until there had been a trial at law; and he cites the case of Johnson v. Gere, in support of his position. In two cases in New-Jersey also, cited by the counsel on the argument, Shannon v. Marselis, (Saxion's R. 425,) and Van Waggoner v. McEwen, (1 Green's Ch. R. 412,) the case of Johnson v. Gere is mentioned by ihe court with approbation. It is to be observed, however, ihat in none of these cases did the precise point in Johnson v. Gere, arise, and consequently the observations of the various judges, although entitled to high respect as proceeding from learned and experienced jurists, have not the weight of authority.

On the other hand, the broad proposition laid down by Chancellor Kent, in Bum pus v. Platner, and repeated by him, after a minute and careful examination, in Abbott v. Allen, to wit, that in the absence of fraud no relief will be granted in this court, against the collection of a bond and mortgage for purchase inoney, where possession has passed and continued, without an eviction at law, under a paramount title, has been repeatedly sanctioned and confirmed in the courts of this state. See particularly Chesterman v. Gardner, (5 J. C.R. 29 ;) Bates v. Delaran, (5 Paige, 300 ;) Denston v. Morris, (2 Edw. Ch. R. 37 ;) Legget v. McCarthy, (3 lb. 124 ;) Withers v. Morrell, (3 Ib. 560.)

One other case in this state rernains to be noticed. That of Banks v. Walker, (2 Sandford's Ch. R. 344.) That was a bill to foreclose a mortgage given by the defendant to the plaintiff's testatrix to secure a portion of the consideration money. One branch of the defence was, that an action of ejectment had been commenced by a person claiming by a title paramount to that under wbich the defendant held, and that the suits were at issue and pending when the bill was filed. The only difference between that case and the present is, that the purchaser in that case had taken no covenants to secure the title. But the decision was not put on that ground; on the contrary, the court held that it could make no difference whether there were covenants or not. The learned vice-chancellor examined the various cases on the subject, and came to the conclusion that there was no authority upon which he could sustain the defence, and that there was authority against it which was conclusive upon him. To which it may be added, that Chancellor Kent, in the last edition of his Commentaries, (vol. 2, p. 473,) lays down the rule as he had done irr Bumpus v. Platner and Abbott v. Allen, and refers not only to them but io Banks v. Walker, as authority, while he takes no notice of Johnson v. Gere.

The only English case we have met with bearing directly on this point, is that of Thomas v. Powell, before Lord Rosslyn, in 1794, (2 Cox's Ch. Cas. 394.) In that case the real estate of a testator had been sold for the payment of his debts. A purchaser of one of the estates, to the amount of £14,000 and upwards, had entered into possession, approved of the title, and accepted a conveyance. He had paid the purchase money into court, under the common order that it should not be paid out without notice to him. An application being

N. Y. Superior Court.-Platt v. Gilchrist and others. made to the court for an order to apply this purchase money to the payment of the testator's debts, the purchaser opposed it, on the ground that the tenants of the estate had been served with a writ of right, at the suit of a person who claimed the whole estate under an adverse title, and he insisted that the money ought not to be paid out of court during the pendency of the suit by which he might be evicted ; that the court would at any time stop it for the purpose of doing justice to the purcbaser. To this it was replied, that though the purchaser would not be compelled to take a doubtful title, yet after the title had been accepted and the conveyance executed, the transaction was complete, and the court could not impound the money on any apprehension of the purchaser; but if he were actually evicted he must resort to the covenants in his deed. The Lord Chancellor, after some days' consideration, said, the court having given the purchaser possession, and a conveyance under a title which he himself had approved, had done all it could for the purchaser, who could not be heard at that stage of the business to object to the application of the purchase money.

The principle of this case is in entire accordance with that of Banks v. Walker, while the facts are much stronger in favor of the purchaser than in that case, or in the case 'now before the court.

The ground on which the interference of the court is claimed in cases of this sort, afier eviction, is, that it is manifestly unjust to compel a man by process of law to pay for that of which the law has deprived him. Whether the court will interfere, even in such cases, where the purchaser has taken no covenants for title, does not appear to be clearly settled, though the weight of authority seems to be against such interference. Bates v. Delaran, (5 Paige, 300.) And it would certainly seem to be contrary to established principles. Courts of equity do not make new contracts for parties, or relieve them from the effects of those which they have fairly and deliberately made. They will interfere in cases of fraud, of accident or mistake, but then it is on the ground either that there was no valid contract, or that the contract actually made by reason of accident or mistake is different from the real intentions of the parties. In the one case they declare the contract absolutely void, in the other, they make it what the parties originally intended it to be, if it can possibly be carried into effect according to their intent. But they never introduce a new stipulation into the agreement, and especially one which the parties themselves might have introduced had they thought proper. A striking illustration of this doctrine is to be found in the refusal to interfere in the case of an express covenant to pay rent, after thep remises, in consideration of which the rent is agreed to be paid, have been destroyed by fire. It is well settled that a tenant can have no relief in such a case -that a court of equity is bound to put the same construction on such a covenant, and to give it the same effect that a court of law would do.

In the ordinary case of a sale of land, the possibility that the title may fail, is a consideration that enters into the views of both purcha

N. Y. Superior Court.-Platt v. Gilchrist and others. ser and seller. If the purchaser does not wish to assume the risk of the title, he protects himself by covenants. If he assumes the risk, he accepts the deed without covenants, and receives his equivalent in the diminution of the price. When the very thing occurs, the hazard of which he has taken upon himself, and for which he has received an equivalent, it would be any thing but equitable to restrain the collection of the unpaid purchase money. It would be throwing upon the seller the very loss which he had declined to assume, and be inaking him, contrary to the intention of the parties, the guarantor of the title, at least to the extent of the sum due. See Gouvernor v. Elmendorf, (5 J. C. R. 79.)

Where there are covenants for title, however, courts of equity interfere upon another principle, viz., to prevent circuity of action. Indeed, it would seem that in such cases a total failure of consideration, even in law, might, upon same principle, after eviction, be pleaded in bar to a suit to recover the consideration money. Tallmage v. Wallis, (25 Wend. 107, 116.)

If these views are correct, a court of equity ought not in any case to restrain the collection of unpaid purchase money before eviction ; not where there are no covenants for the title, because relief could not be granted, even if eviction had taken place; nor where there are covenants, because the principle on which alone the court is justified in interfering does not apply until after eviction.

There is also this further objection, which has been already alluded to. It would be varying in an important particular the contract of the parties. The purchaser in this case promised to pay the purchase money at stipulated periods, and the seller covenanted, that if at any time the title should fail, and the purchaser be evicted by a paramount title, he would refund the purchase money with interest. The possibility that the title might fail, and the purchaser be evicted, was in the minds of the parties. They might also have provided, that in case of a claim being made by title paramount before actual payment of the consideration money, the right of the vendor to call for its payment should be suspended. But this they have not thought proper to do, and this court can with no more propriety add such a clause to the contract, and suspend the collection of the purchase money, than it can suspend the collection of rent expressly covenanted to be paid, upon the destruction of the buildings, where the parties have not themselves provided against it.

The court, moreover, if it interfere at all, must do so upon the simple fact of a claim having been made by suit, without reference at all to the character of the claim.

This court cannot try the title. Nor can it speculate upon the probabilities of the result of a suit, and grant or refuse relief according to a crude notion it might entertain as to the validity or invalidity of the adverse title. It is easy to see how dangerous the adoption of such a principle would be what a temptation it would hold out to the bringing of actions by collusion in order to stay foreclosures, and how greatly it would affect the value of mortgage securities of this character.

N. Y. Superior Court.—Florence v. Bates. This decision may operate severely on the defendant in this case, and especially if the adverse claim shall turn out to be well founded ; but a contrary decision would operate with severity on the plaintiff, if the title shall prove good. He is, moreover, only pursuing his legal remedy for a debt admitted to be due, while the defendant has all the protection for which she stipulated in the event of the title proving defective. She bas the covenants of the defendant, Gilchrist, who is, as she states in her answer, abundantly responsible; and she would also be entitled, in case of eviction, to the benefit of the covenants of the plaintiff contained in his deed to Gilchrist.

We feel bound to say, that neither upon principle nor authority can we interfere to stay the plaintiff's proceedings in this case.

He is entitled to the usual decree for foreclosure and sale.

[Special Term.]

Before Mr. Justice MASON.

JOHN FLORENCE, Jun., v. STEPHEN BATES.

On a motion to show cause why an injunction should not issue, the defendant may read in op.

position to the motion, the affidavits of third persons, although he has put in his answer denying the whole merits of the complaint. The answer in such case is only used as an affi.

davit The rule adopted in Maryland, and some other states, that on a motion to dissolve an injunction,

if the equity of the case made by the bill is not denied, but new matter is set up in avoidance which is a complete defence to the action, the court cannot regard such new matter, but must continue the injunction to the bearing, has not been adopted in this state. It is also contrary to the practice in England, where a defendant is entitled to a dissolution

of the injunction as a matter of course, upon the allowance of a plea to the whole bill. The court will, however, permit the plaintiff to put in affidavits in reply to such vew matter. Sec. 226 of the Code does not conflict with the allowance in this case of affidavits in reply on

behalf of the plaintiff. Upon an application to dissolve an injunction on the answer of the defendant, such new matter not responsive to the complaint, should, perhaps, be cousidered as an affidavit merely, within the meaning of this section.

The facts of this case are sufficiently stated in the opinion.

Grim, for the plaintiff.

J. T. Brady and John Graham, for defendants.

Mason, J.-The plaintiff in this case brought his complaint for an injunction, to restrain the defendant from darkening his windows by the erection of a building, and also from selling liquor on his premises, contrary to the covenants contained in an agreement made between the defendant and the assignor of the plaintiff.

An ex parte application having been made to a judge at chambers, upon the matters stated in the complaint, he directed notice to be given to the defendant to show cause why the injunction prayed for should not issue, and granted a temporary injunction in the mean time.

N. Y. Superior Court.— Florence v. Bates. The defendant on the return of the order showed cause, by his answer to the complaint, duly verified, and also by the affidavits of several persons in support of the answer, and the motion has been argued at length by the respective counsel. The questions raised on the argument were principally those of practice, some of which have never been, as far as I can discover, setiled in this state.

The plaintiff's counsel in the first place, objected to any affidavits being read in support of the answer. That objection, however, is overruled by the case of the Village of Seneca Falls v. Matthews, (10 Paige, 504,) in which the Chancellor expressly held, ihat in a case like the present, upon an order to show cause why a preliminary injunction should not be granted, whether a temporary injunction is or is not allowed in the mean time, the defendant has a perfect right to introduce his own or any other affidavits for the purpose of showing that the injunction should not be granted as asked for, and that he may use such affidavits in a case of that kind, although he had put in his answer, denying the whole equity of the bill, or has neglected to answer the bill fully, so that his answer may be excepted to for insufficiency; for the answer, he adds, in such a case is only used as an affidavit on the part of the defendant, in opposition to the complainant's application.

The plaintiff's counsel next insisted that he was entitled to the injunction, because the facts on which the equity of the bill rests were not denied by the answer, and contended that on this motion the court could not regard matter in avoidance, set up in the answer and supported by the affidavits, however conclusive such matter might be against the plaintiff's right, but the defendant must continue under injunction until the hearing. And the cases cited by the counsel from Maryland, certainly support the proposition. In the Bellona Company's case, (3 Bland Ch. R. 442–445,) it is stated by the Chancellor, to be "a well established rule, that on a motion 10 dissolve an injunction, the defendant can only ask for a dissolution, upon so much of his answer as is properly responsive to the bill, no new matter in avoidance making its appearance for the first time, can in this stage of the cause be allowed to form any part of the defendant's motion for a dissolution. It is a direct and responsive denial of the facts composing that case, on which the plaintiff's equity rests, which alone can entitle the defendant.” The same doctrine is held in other cases reported in the Maryland reports, and also in Lindsey v. Etheridge, (1 Dev. & Batiles, 38.) Wiih all due respect to these authorities, I confess myself so dull as not to see the force of their distinction. If a defendant in answer to a bill asking for an injunction against the violation of a covenant alleged to have been entered into by bim, should deny that he executed the covenant, the injunction according to these cases would not be granted, or if granted, would be dissolved. If, however, he should admit that the covenant had been made, but should set up a release by the plaintiff, so that it was no longer in existence, the injunction mụst be granted, or if granted, continued till a final decree.

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