Opinion
June Term, 1837.
Matters of equitable defense against a judgment at law cannot be set up to prevent the removal of an encumbrance, operating as an impediment to the satisfaction of it, but must be urged by a bill seeking relief against it.
THIS suit, which was pending at the same time with the preceding one of Geddy v. Stainback et al., was brought for the purpose of having a sale of certain mortgaged premises belonging to the plaintiff in that suit, to satisfy the judgment he had obtained upon the bond mentioned in that suit. The matters set forth in the bill in the preceding suit were relied upon in the answer in this as a bar to the relief sought. The allegations and proofs were exactly the same in both suits, the preceding one being, in fact, a cross-bill to the present.
W. H. Haywood for plaintiff.
Badger and Devereux for defendants.
The relief sought is of course to every judgment creditor, as such, in the way of whose satisfaction at law an encumbrance stands. He has a right to redeem or to have the encumbrance satisfied out of the property; and it is no favor to him, but mere justice, to decree it for him in this Court. It is not to be considered, therefore, that objections to the relief can be made upon the ground of an equity against the judgment, by way of defenses. The proper mode of taking benefit of such an equity seems to be by a bill of the (480) defendant at law. But in this case, as the opinion of the Court is clear, and has been already expressed upon the merits in the other cause, it is enough to say that, for the reasons before given, the contracts, as written, are obligatory in this Court as they are at law, and therefore that the plaintiff is entitled to have satisfaction of his judgment. There must be a reference to the master to ascertain the sum due to the plaintiff for principal, interest, and costs, upon the foot of his judgment; the sums due the creditors mentioned in the deeds of trust, and the present state of the trust fund; of what it consists, etc.
PER CURIAM. Decree accordingly.