p. 617Lansing against Capron and others.Headnote
Where a mortgage is given to secure a sum, payable in instalments, with interest, and, on default in payment of the first instalment, a bill is filed by the mortgagee, the defendant will not be allowed to stay proceedings, on bringing into court the principal and interest due, with the costs which had accrued, unless he also put in an answer, confessing the debt, -&c. or consent to a decree of foreclosure, to remain subject to the further order of the court upon a subsequent default.And it seems, that, in such case, if the subsequent instalments are punctually paid, the defendant will not be charged with the further costs.
THE bill, which was filed the 30th of October, 1815, stated, that the defendant, Capron, on the 30th of September, 1813, mortgaged to the defendants, Lockwood and 'M-Pherson, certain lots of land in Albany, to secure the payment of 1,890 dollars, being the consideration money for the purchase of the lots of them, on that day; the amount was to be paid in three instalments, of 630 dollars each, with interest, on the 30th of September, 1814, the 30th of September, 1815, and the 30th of September, 1816, the interest to be paid annually. That the mortgage contained a power of sale, and was registered the 29th of October, 1813. That the defendant, Lockwood, on the 8th of April, 1815, assigned over all his interest in the mortgage to MlPherson, who assigned over the mortgage to the plaintiff, for 1,318 dollars and 82 cents. That Capron omitted to pay the principal and interest that became due, so that the estate of the plaintiff became absolute at law; and he prayed that the principal and interest due, and to become due, might be decreed to be paid, with costs, or that the property mortgaged should be sold, &c.
J. V. N. Yates, in behalf of S. Stafford, the assignee of the mortgagor,
now moved that the proceedings on the part
p. 618of the plaintiff he stayed, on paying into court the instalments due, with the interest and costs. He admitted that the defendants had not appeared or answered. The affidaof Stafford was read, stating that he was the owner of the equity of redemption, and that only one instalment was due, with interest, which he was ready to payj with interest and costs.The counsel cited the act for the amendment of the law, 1 N. R. L. 515. sess. 36. ch. 56. s. 6. Stra. 515. 814. 957. 1 Atk. 518. 2 Wm. Bl. 906. Barnes, 288. Tidd’s Pr. 485, 486. 6 Term. Rep. 399.J. V. Henry, contra,
contended, that the plaintiff was entitled to an answer, and a decree of foreclosure, to be entered at the expense of the defendants, or of the party entitled to redeem, and to remain as a security against future defaults.It •'ppears from the anthorities cited on the part of the defendants, to be settled in the courts of law, that in an action of debt upon a bond, with a penalty for the payment of money by instalments, when only part of the instalments are due, the defendants may bring into court the money, with the costs accrued. This is held to be within the equity, though it is not within the letter, of the statute of 4 Ann. ch. 16., and from which our act was taken. That statute relates to the bringing in the whole amount of the condition of thebond pending the action, so that the bond may be discharged. But in those cases the permission is upon terms, by allowing the plaintiff to enter judgment for the penalty, to stand as a security for the future instalments. The reason assigned for this permission to the plaintiff is, that the bond is forfeited, and become absolute at law, and the plaintiff is entitled to the benefit of that legal advantage so far as to take judgment for the penalty, to stand as a further security; and because it is not reasonable that the obligee should be put to a new action for every fresh default. The principle, at law..
p. 619has considerable, though not entire, application to this case. There is no need of the entry of a decree of foreclosure to give security to the debt, for the lien subsists, and its value is increased, by every payment. But, on the other hand, the institution of new suits in this court, on every default, is more expensive, and may be difficult, by the change of parties, in relation to the fund; and it is the policy of this court to prevent multiplicity of suits. It is, therefore, reasonable, since the plaintiff has been put to his suit to recover the instalment due, that the party applying should put in an answer, confessing the debt, or consent to a decree of foreclosure, to remain subject to the order of the court upon a subsequent default; and that the question of costs, on taking such a decree, be subject to the like order. If the future instalments be punctually paid, I shall, probably, not charge the defendants with the further costs.
I shall, therefore, order, that the party applying have leave to bring into court the principal and interest now due, together with the costs hitherto accrued, on his enabling the plaintiff, by answer or consent, to take a decree of foreclosure on the terms aforesaid.
Order accordingly.