Thomas v. Brown — 9 Paige Ch. 370

Majority

p. 370

Thomas vs. Brown and others.

Headnote

Where the holder of a bond and mortgage commenced an action at law upon the bond to obtain satisfaction of the debt, and afterwards, upon ascertaining that the defendants were insolvent, filed a bill of foreclosure to obtain payment of his debt ont of the mortgaged premises, and the defendants who had put in a defence to the action at law applied to the court in which the action was pending, and obtained an order that the plaintiff proceed to trial, or that judgment as in case of nonsuit be entered; Held, that the defendants must consent to a discontinuance of the action at law without costs, or that the court of chancery would permit the plaintiff to proceed to trial in that action, notwithstanding the pendency of the foreclosure suit.

January 5

, This was an application by the complainant in a foreclosure suit for leave to proceed to judgment in actions at law commenced for the recovery of the mortgage debt. Previous to the filing of his bill the complainant had commenced suits at law against some of the defendants, who had become personally responsible for the payment of the mortgage debt. But such defendants having subsequently failed, he filed his bill in this cause, to foreclose the mortgage, and made them parties here. Those defendants having put in pleas in the actions at law, applied to the supreme court and obtained orders that the plaintiff proceed to trial therein, or that judgments as in case of nonsuit be entered.

Ji. Taber, for the complainant.

M. T. Reynolds, for the defendant.

If the defendants in the suits at law consent that those suits may be discontinued without costs, the complainant will not be permitted to proceed to trial there. But as the suits were commenced in good faith and the complainant was afterwards compelled to resort to his bill of foreclosure, to obtain satisfaction of his debt out of the mortgaged premises, in consequence of the insolvency of the defendants who had been sued at law, he must be permitted to proceed to trial there if the defendants wish to test the question whether he is liable to pay their costs in those suits. If the defendants succeed in their defence in those suits, they will of course be entitled to their costs in the supreme court. But if they fail, the plaintiff’s costs must abide the further order of this court. And he is only to be permitted to proceed so far, in the suits at law, as to entitle him to enter up his judgments if he succeeds; but no judgment records are to be filed there until the further order of this court.

Order accordingly.