Patchin v. Pierce

By the Court, Nelson, J.

The judge erred in the submission of this case to the jury, upon the grounds stated by him.' After the default in payment of the money secured by the mortgage, the title to the property became absolute in the mortgagees, and they or their representatives had a right to’ reduce it to possession. 8 Johns. R. 96. 7 Cowen, 290. 9 Wendell, 80 . Notwithstanding the forfeiture and perfection of the title in the mortgagee in such a case, I have always supposed, and have no doubt, that in equity, upon well settled *63 principles, the mortgagor has the right to redeem. If such remedy did not exist, there might and would frequently be an enormous sacrifice of property. It seems, however, that the right to redeem may be foreclosed, without judicial proceedings, by a sale of the property as in the case of a pledge, upon reasonable notice to the mortgagor, 2 Johns. Ch. R. 100, and cases there cited, 10 Viner’s Abr. title Pawn, pl. 3, Powell on Mortgages, 1041, 1 Vesey, sen. 278,2 Fonblanque, 261, n. f.

Tender of the money after forfeiture does not operate to reinvest the title in the mortgagor, so as to enable him to recover at law. 8 Johns. R. 96. If the money be accepted, I think it would have that effect, as the acceptance would be considered a waiver of the forfeiture, the act of the parties being susceptible of no other construction. But the acceptance of a part of the money secured by the mortgage would not authorize such an inference, and the establishing of a rule that the payment of part should be considered a waiver of the forfeiture, would be as inconvenient to one party as to the other, as it would necessarily embarrass all partial payments. It cannot be contended that the acceptance of a part of the money would discharge the mortgage; and if it would not, the rule would be of no essential importance to the mortgagor, for a subsequent demand of the balance due and refusal to pay would create a new forfeiture. Besides, in most cases of mortgages of personal property, the mortgagee, by the very terms of the instrument, is entitled to possession at his option, until the money be paid.

The promise by the defendant to wait three weeks for payment, or to wait that length of time before he would take the property, was without consideration, and therefore a nudum pactum.

The judge also erred in permitting the consideration stated in the mortgage to be varied or contradicted by parol evidence. 1 Johns. R. 139. 3 id. 509. 7 id. 341. 1 Vesey, sen. 128. 1 Phil. Ev. 427. 1 Cowen, 250. 4 id. 431. There are many exceptions to this rule, such as fraud and illegal consideration ; but it is impossible to distinguish this case from those cases in which it has been uniformly applied, and particularly those in this court above referred to. The contradie- *64 tory testimony in this case, alternately impugning and supporting the consideration stated in the mortgage, shows the danger of departing from the rule. The consideration of promissory notes may be inquired into, but there the consideration does not appear upon the face of the instrument; and even as it regards promissory notes, the rule is inflexible as to any material part appearing upon the face of the note. 8 Johns. R. 189. An absolute deed may in equity be turned into a mortgage by parol proof; but that is on the assumption of fraud in the grantee, upon which ground the action of the court is sustained. 4 Johns. Ch. Rep. 167 , and cases there cited. Powell on Mort. 200. If there is a mistake in the mortgage as to the amount of indebtedness of the mortgagor, the remedy, as in all cases of this kind, is to be sought in a court of equity. Here the party must be bound by his agreement.

New trial granted.