Opinion
09-14-1905
MARCOLE v. HINNES et al.
A. P. Rosenkrans, for the motion. Michael J. Murphy, opposed.
Suit by Nicholas Marcole against Rein Hinnes and others. On application to open the decree or reduce the amount named in the fi. fa. for the sale of the mortgage premises. Heard on petition and affidavits. Application granted.
A. P. Rosenkrans, for the motion. Michael J. Murphy, opposed.
STEVENSON, V. C. My conclusion is that the defendants, the mortgagors, should have an opportunity to correct the amount of interest with which they are charged in the master's report. The following are the main considerations which underlie this conclusion:
1. The petitioners swear positively that the mortgaged premises are worth about $5,000. The premises consist of a little over seven lots of land, 25x100 each, on which are erected a substantial dwelling house and another building. As the proofs stand the property cannot be deemed worth less than double the amount of the mortgage indebtedness. There do not appear to be any incumbrances upon the property prior to the mortgage, excepting the taxes for one year. If the mortgagors wish to litigate over the amount of interest, such litigation may be conducted entirely at their expense, if they do not succeed. In awarding costs and counsel fees, the court has full power to prevent any serious injustice from expensive litigation.
2. The master reported that the amount due on the mortgage was the principal sum ($2,000) and interest for 2 1/2 years. The only-evidence was the affidavit of the complainant's solicitor, which does not indicate how he could possibly know how much interest had been paid.
3. The petitioners allege that they were deceived in regard to the suit by statements and assurances made by the mortgagee, the effect of which was to enable the mortgagee to carry his suit through to decree and sale while the petitioners, the mortgagors, were paying no attention to the suit under the mistaken impression, derived from the complainant's statements, that the suit had been discontinued. Although these charges of deception and bad faith and abuse of confidence are made most positively, and the complainant, the mortgagee, had a full opportunity to reply, and in fact did reply to the affidavit in which the charges are made, nevertheless he (the mortgagee) makes no denial whatever of any of these charges of fraud.
4. Ordinarily an order of reference would be made to ascertain the amount due on this mortgage. The mortgagors admit that the principal sum is due, with interest from July 13, 1904. It is the interest for 2 1/2 years, together with an alleged usurious bonus of $5, which is the subject-matter of dispute. In view, however, of the contradictions contained in these affidavits and of the comparatively small amount in dispute, I do not wish to order a reference to a master, which would involve extensive depositions. Before determining the course of procedure, I will hear any suggestions from counsel. If, for instance, counsel should consent that the case should be absolutely disposed of by the master, the witnesses could be examined and cross-examined before him without the aid of a stenographer, and it would not be necessary to have the depositions written out. Judge Lewis, for instance, could sit as a master and try this question of the amount of interest due in two hours at very little expense to the parties concerned, if the parties will make the proper stipulation and accept the master's decision as final. Other arrangements having the same object in view, viz., the saving of expense, might be proposed. Messrs. Rosenkrans and Murphy can call together and see me at any time.