Degener v. Stiles — 6 N.Y.S. 474

Majority

p. 474

Degener v. Stiles et al.

(Supreme Court, General Term, First Department.

July 9, 1889.)

Headnote

Mortgages—Foreclosure—Receiver.

Where a mortgage security is ample, equity will not appoint a receiver, and take the possession of the property from the mortgagor before a decree and sale, though the mortgage may provide for a receiver on default of the mortgagor.

Appeal from special term, Hew York county.

Henry Degener sued Mary A. Stiles and others to foreclose a mortgage, one of the conditions of which was that on default the mortgagee, without consideration as to the value of the property, should be entitled to a receiver. From an order refusing to appoint, plaintiff appeals.

Argued before Van Brunt, P. J., and Brady, J.

A. Sticltney, for appellant, li. S. Ailing, for Mary Stiles.

The claim made by the appellant upon this appeal seems to be that a court of equity is bound to decree specific performance of every contract which maybe entered into between parties, no matter whether it appears from the facts of the particular case that it is inequitable and unconscionable so to do or not. The court of equity was organized to relieve the hardships of the law, and was not intended to enforce or aggravate such hardships. This has always been the cardinal principle governing the administration of justice in courts of equity, and it has been repeatedly held that a court of. equity will not lend its hand to aid in the performance of an inequitable act. Therefore in the case at bar, as it seems that the security is ample, no claim being made but that the mortgage is amply secured, it would be wholly inequitable to take the possession of the property from the mortgagor until it should be done by a decree and sale for the purpose of satisfying the amount due on the mortgage. It being inequitable, a court of equity cannot lend its aid to the enforcement of the agreement for a receiver, notwithstanding the parties may have made such a contract. The order should be affirmed, with, $10 costs and disbursements.