Opinion
Argued October 10, 1881
Decided November 22, 1881
Nathaniel C. Moak for appellant. Samuel Hand for respondents.
The plaintiff's own proposition, as submitted by her counsel, is really an answer to the appeal. Assuming in the printed points a case most favorable to herself, she says, under these circumstances "a decree for a specific performance is almost a matter of strict legal right." It is, therefore, conceded to be so far deficient that something more is needed to make a cause of action, to which, as of course, the law will, by its own operation, apply a remedy. For this reason the principles of equity are invoked; yet they are to be applied, not as of course, but in the exercise of a sound discretion, and never in place of facts to make out a case for relief. The plaintiff shows no ground of action. She accepted the defendants' promises in full payment of the purchase-price of the property sold. By the express terms of the agreement $22,000 (part of this price) was discharged or paid, by his "assumption" of the mortgage. I do not think the word, as commonly understood, would indicate a promise of immediate payment, or even of payment when due, but rather an adoption of or taking upon himself the burden of the mortgage, the care of it, so that the mortgagor should not be harmed or troubled by it. In substance then a promise, to indemnify, or hold the mortgagor harmless for or on account of it, not of payment under any circumstances to her. If, indeed, she should be called upon, either by action upon the bond, to secure which the mortgage was given, or be compelled to pay a deficiency arising on the foreclosure of the mortgage, the defendant would, by the terms of his agreement, be liable to her. ( Comstock v. Drohan, 71 N.Y. 9.) But this is not the case. It seems, however, from the complaint itself, and such also is the admission in the answer, that before the commencement of the suit the holder of the mortgage had commenced its foreclosure. The result of that proceeding may supply the elements now lacking to afford a cause of action. But the fact itself is another reason against the remedy applied for by the plaintiff. Multiplicity of actions is to be avoided. The effect of the conveyance to Mrs. Watkins and the agreement between the plaintiff and Watkins was to make the mortgaged premises primarily liable for the debt, and the defendant Watkins principal debtor, as between himself and the plaintiff. ( Russell v. Pistor, 7 N.Y. 171; Comstock v. Drohan, supra.) The premises, when sold under a decree of foreclosure, may produce enough to satisfy the mortgage and so terminate all personal liability, and until this is ascertained it would be most inequitable to vex the courts with fresh litigation over the same questions.
I am aware of no case, and certainly the appellant has cited none, where a court of equity has interfered in behalf of a surety to compel the principal debtor to pay a debt before it has been ascertained that the fund primarily liable was insufficient to discharge the obligation, or while the creditor was in court seeking to enforce it. In Warner v. Beardsley (8 Wend. 195), the Chancellor (WALWORTH) says: "If the time of payment is past and the creditor neglects to proceed, the surety himself may institute a suit in equity against the principal debtor and the creditor;" and in Gibbs v. Mennard (6 Paige, 258), to which we are referred by the appellant, the same learned magistrate lays down the rule in a more general way, omitting the qualification above referred to, and this is repeated by him in Marsh v. Pike (10 Paige, 595), but in both instances he cites Warner v. Beardsley ( supra), and in neither is the question decided upon such a proposition. In the first ( Gibbs v. Mennard) the relief sought by the surety was denied upon the ground that the general principles by which the Court of Chancery was governed would not sustain a bill in equity against the principal on the bond "before any proceedings had been instituted against the surety for the recovery thereof." In the second ( Marsh v. Pike), it appears from a fuller statement of the facts given in 1 Sandf. Ch. 210, that the surety, before suit brought, had applied to the principal debtor to pay off the bond and mortgage, and to the creditor to permit a foreclosure in his name at the surety's expense, and that these requests were refused. These cases do not help the plaintiff, for we have here, by her own showing, a creditor pursuing the usual remedy, and a debtor, the extent of whose liability is not yet ascertained. Moreover, if the defendant has in fact assumed the mortgage, he has fulfilled the agreement, and for any breach of the promise implied, therefore, the plaintiff can have, for aught that is alleged or proven, full compensation in damages for any injury she sustains. Upon this ground, therefore, the refusal of the court to interfere may be upheld. (1 Story's Eq. Jur., §§ 716, 717.) The cases cited by the appellant ( Crary v. Smith, 2 N.Y. 60; Brown v. Haff, 5 Paige 235) are not to the contrary. All were actions on land contracts. In the first, the vendee was in possession of premises bargained for, and refused to take a deed under the contract or pay the price. In the second, the vendee refused to complete the purchase. In the third the vendee sought to compel the execution of the deed, and in each were circumstances taking the case out of the general rule to which I have referred. The case before us is destitute of any circumstance calling for the cognizance of a court of equity, and was properly disposed of by the trial court.
The judgment appealed from should, therefore, be affirmed, with costs.
All concur.
Judgment affirmed.