Opinion
03-29-1888
PROBASCO v. VANEPPES et al.
A. C. McLean, for complainant. D. H. Harvey, for defendants.
Bill to foreclose mortgage.
A. C. McLean, for complainant. D. H. Harvey, for defendants.
BIRD, V. C. I think the complainant's bill was properly filed. The interest came due on the 1st day of July. It was not paid. The defendant was ready to pay it the next day, and so informed the complainant, but he made no tender. To this extent there is no hardship about the case; for the complainant informed the defendant that, if the money was not paid when it was due, he would hand the mortgage to others for collection. The money not being paid, the complainant ordered his solicitor to proceed to foreclose; but, before doing so, the solicitor wrote the defendant, and waited several days before he filed his bill. The interest not being paid, this bill was filed.
The complainant now insists that he is entitled, not only to have a decree for a sale of so much of the land as will be sufficient to pay the interest due and the costs, but of the whole of the land, and that for the payment of the principal as well as the interest. He makes this claim upon two grounds:
1. That the extension of time for five years, after the expiration of the first five years, was obtained from the complainant by the fraud of the defendant Vaneppes. He says that the original agreement provided for the payment of the principal in five years; but that, when the mortgage came to be executed, the defendant, representing that he owned a very large and valuable estate in the city of New York, worth a great deal of money, anddesiring the privilege of extending the time for the payment of five years beyond the period already agreed upon, and the complainant, from such representations, being sure that the bond would be good if the land should depreciate, consented that such further condition might be inserted in the bond. It now appears that, if such representations were made, they were not true in any respect. There are two substantial objections to making a decree upon this basis: First, because it does not sufficiently appear in the bill of complaint that there was any such fraud perpetrated; and, secondly, there is no satisfactory proof, under the rules respecting the production of testimony, of any such fraud. The complainant swears to it, it is true; but the defendant in exact terms denies, and the scrivener who was present says he never heard anything like it.
The second ground upon which a sale of all the land is asked for is that a sale of part will materially damage the remainder, so that the lien of the complainant will be impaired. This is not sustained by such proof as to convince my judgment that it ought to be done. It is true that the premises are mortgaged, it may be, above all they are worth. It is true that, when the complainant sold these lands to the defendant, he accepted a mortgage for the entire consideration. Now, if the premises are scanty security, there is nothing to show that they have very greatly depreciated since the taking of the mortgage, except that the defendant has cut and removed a large portion of the timber, if not all, from a tract of five acres. And while the complainant has introduced a witness respecting the value of these premises, and how the balance would be affected, supposing a portion should be sold off, it is not made at all clear that material damage would be done to the balance, should a portion be sold to raise the $150 interest, and the costs. Doubtless, in every such case, before the court will say that such an agreement has been forfeited, and the money which it was intended should become due at a given period of time in the future should be declared now to be due, strong proof should be submitted showing clearly that damage would result to the party complaining. It must be recollected that it was within the power of the parties to make their agreement so as to cover this very condition of things, and to provide that, upon the failure to pay the interest, the principal and interest should both become due. In the absence of such agreement, and in the absence of proof showing that the balance of the property would be materially depreciated by a sale of part, it seems to be my duty to advise, in the first instance, a sale of the five acres described in the bill of complaint; and, in case that fails to produce money enough to pay the complainant the amount declared to be due him and the costs, that then, and in that case, the whole of the mortgaged premises described in the bill of complaint shall be sold. I say all shall be sold in that event, because if the testimony as to the value of the five-acre tract should fall so far short of showing its real value, it would go far towards satisfying my mind that the entire premises has more greatly depreciated than is supposed, and that it would be doing injustice to all parties to sell it in any other wise than as a whole.