Hartson v. Davenport — 6 Sarat. Ch. Sent. 53

Majority

p. 53

Philander Hartson v. Ira Davenport.(^[1] )

Headnote

This was an appeal from an order of the vice chancellor of the seventh circuit allowing complainant to amend his bill. The object of the bill was to have a bond and mortgage which was alleged to be usurious, delivered up and cancelled. It contained a prayer for an injunction to restrain the defendant from proceeding in a suit at law upon his

p. 54

bond. It appeared from the bill that the complainant had conveyed a small portion ot the mortgaged premises to another person. The defendant demurred to the bill on the ground that such person was not made a party to the suit. The complainant then applied for leave to amend his bill by making such purchaser a party. The vice chancellor allowed the amendment, on payment of the costs of the demurrer, and the motion.

.R. B. Van Valkenburgii, for the appellant,

insisted that as it was an injunction bill, and showed on its face that the purchaser was a necessary party, he should have been made a party in the first place. He also insisted that as the object of the bill was to set aside and cancel a mortgage as usurious, the complainant should not be permitted to amend his bill upon any other terms than that of paying the amount loaned, with interest.

J. A. Collier, for respondent,

was stopped by the court.

An injunction will not be granted to stay upon a bond*1on _ihe ground that it is alleged to be void for usu-If a mortgage is usurious, mort-bil?°t<?\iave 6it cancelled.

Terms on _ which technical defects will corrected? *° be

The Chancellor said that though an injunction was praved for . ., , . . . , , , ’ it was evident that no injunction could properly be granted to re-stra™ tihe suit at law upon a bond; as the complainant had a perfect defence at law, and no discovery was asked for. He said, 7 J , 1 however, that it the mortgage was usurious, and a cloud upon the complainant’s title, he had a right, under the act of 1837, to come . 1 . ° . into this court tor the purpose ot having it cancelled; but that this would not entitle him to an injunction to prevent the mortgagee from suing at law on the bond ; unless a discovery was necessary or there was some other obstacle to the making of the defence there.

The Chancellor said the order of the vice chancellor was also , right, as to the terms upon which the complainant was allowed to amend. That where a party has lost the opportunity to set up a mere technical or unconscientious defence, by some slip, and comes to the court for a favor which it is necessary should be granted to him to enable him to set up the defence, the court should require him to do equity, as a condition of granting the favor. But that in this case, the refusal of the amendment would not prevent the complainant from getting rid of the usurious security, but would merely subject him to the useless expense of filing a new bill.

The order appealed from was therefore affirmed with costs.