Opinion
09-10-1889
BENEDICT v. MORTIMER.
Eugene Stevenson, for petitioner. James Flemming, for respondent.
On petition to open final decree.
Eugene Stevenson, for petitioner. James Flemming, for respondent.
BIRD, V. C. The complainant filed his bill for strict foreclosure. After the master had made his report of the amount due on the mortgage, the petitioner, who was a defendant, tendered the amount due, but upon condition that another person, who it is alleged has some interest in the premises, should be made a party. Such person was not made a party; nor was any further effort made by the party so entitled to redeem to arrest the progress of the suit, either by plea, answer, or demurrer, until after final decree, when she comes in by petition and asks to have the decree opened on that same ground.
I think that a petition coming so late, and not alleging any surprise or new matter, and coming from a party to the suit who has had every chance to be heard, should not be favored by the courts, except where the highest claims are exhibited for relief. This is not such a case. On the contrary, this petitioner, being a party, stood idly by looking on while the complainant was pressing his suit, and refused to take any step on account of the defect of parties until the complainant had had his rights determined by final decree.
But all that the petitioner had to do at any time in order to protect her interests was toredeem; this is all that she was called upon to do. Had she done this, she would have been in the position of the complainant, and entitled to all of his rights. More than this she could not acquire in any event. I do not understand that any other person has any interest in the mortgage but the complainant, it being alleged, simply, that another may have some interest in the title to the land mortgaged. If there be any such title, it is not made to appear that it is subordinate to the mortgage, and that the holder of it has any right to redeem. If his interest be superior to the mortgage, then he need not be called upon to pay or he foreclosed, since subsequent liens and interests only can be cut off. But as the case was presented to me, the complainant and the petitioner are the only persons interested in the mortgage; and this being so, she might at any time have paid it and taken the place of the complainant, or, if she had any valid defense, have made her defense. The petition should be dismissed with costs.