p. 250Mortgagor and Mortgagee. Action.
The complainant had taken two bonds and mortgages from the defendant, James E. Underhill, on a sale of real estate; and, on non-payment, had commenced an action on the bonds in the Superior court of the city of New-York, which was at issue and noticed for trial.
After the action was commenced, the complainant filed his bill to foreclose the mortgages, and he now moved, upon affidavit, to be allowed to proceed in the action. In this affidavit he deposed : “ that all of the principal sums secured by the said mortgage, together with the interest accrued thereon since the said first day of November, one thousand eight hundred and thirty-seven, is still due and unpaid to this deponent; that there is now due and payable to this deponent, from the said Underhill,upon certain promissory notes of him, the said James E. Underhill, given to this deponent for interest upon the aforesaid mortgage, and for interest accrued upon acertain'other mortgage held by this deponent against the said James E. Underhill, the sum of eleven hundred dollars and upwards. And this deponent further saith, that, at the time of the sale of the mortgaged premises to the said James E. Underhill, there was standing upon the same certain buildings and improvements which have since been consumed by fire, and that the said mortgaged premises, as now situated, are not of sufficient value to secure to this deponent the payment of the aforesaid original purchase money; that the said James E. Underhill, as this deponent is informed and believes, is very much embarrassed in his circumstances. And this deponent verily believes that he will ‘not be able to collect from the said James E. Underhill the amount due and unpaid upon the aforesaid mortgages, unless he shall be permitted to proceed in the prosecution of the action, &c.”
An affidavit made by the defendant, James E. Underhill, was read in opposition : tending to show, that the premises were worth more than the incumbrances; that the defendant was worth a large property, over and above all just claims and demands against him ; and other circumstances, in proof of ill feeling on the part of the complainant.
Mr. J. Dikeman, in support of the motion.
p. 251Mr. N. F. Waring, contra.
It was a common practice, be fore the passage of the revised statutes, for a mortgagee to proceed at law upon the bond at the same time that he proceeded in this court upon the mortgage. The revisers, however, very properly thought this unnecessary, and the statute now provides for a decree over against the mortgagor, as a substitute for a judgment at law, and takes away the remedy at law on the bond, while a bill of foreclosure and sale of the mortgaged premises is pending: “ unless authorized by the court of chancery(2 R. S. 191). Here is a discretion vested in this court, but which is not to be made use of, except in extraordinary cases. And the fact of deterioration in the value of the mortgaged premises by fire is not a sufficient ground to allow this complainant to work two remedies at the same time. He might, himself, have guarded against the loss by an insurance.
Motion denied, with costs.