Avon-by-the-Sea Land & Improvement Co. v. Finn

The opinion of the court was delivered by Collins, J.

We see no reason to question the propriety of the order from which this appeal was taken. The affidavits disclose no reasonable excuse for the appellant’s inaction between the time of the last sale of lots in July and the tender on September 2d, and no excuse .whatever for permitting the taking of the decree nearly three weeks later and delaying application to open such decree *807 until the eve of the advertised sale. Laches, although not always fatal to an application to open a chancery decree or to an appeal from a refusal to open such a decree (Day v. Allaire, 4 Stew. Eq. 303, 315), is, nevertheless, to be considered, and a decree suffered by default without valid excuse should not be opened, even although strictly there may be a defence, if to permit the decree to stand will work no injustice. Vanderveer v. Holcombe, 7 C. E. Gr. 555; Boynton v. Sandford’s Executors, 1 Stew. Eq. 184; affirmed, 1 Stew. Eq. 592.

The mortgage in this case was long overdue, and the complainant was .even entitled to a decree at the time of the experiment of the auction sales. Neither the fact that the mortgagee had given releases after the mortgage was overdue, nor the fact that she made no objection to the terms of the auction sales, gave the appellant any substantive rights or created an estoppel indestructible by laches. The most that the appellant could fairly have asked was a sale in lots by the map, and for that relief it was not necessary to open the decree. As sale could have been had almost immediately at the time of the application to open the decree, and the appellant could have protected its auction sales by bidding for the lots sold the prices at which it had sold them, it is evident that the purpose of exacting the release was that the appellant might gain the profit on such sales above the sum tendered, thus leaving the mortgagee to the hazard of securing the rest of her debt from the sale of the residue of the lands. We think that a court of equity could not reasonably be required to open a regular decree permitted by the defendant’s laches, in order to help the accomplishment of that result. The equity the appellant had in the mortgaged premises, after condition broken, was an equity of redemption from the mortgage debt— not an equity to compel a release that might impair the mortgagee’s security. If it was desired to protect the purchasers of lots sold at the auction, as far as practicable, that might have been easily accomplished by asking that the other lots should be first sold.

We do not say that timely answer and cross-bill would have availed the appellant. If the peculiar language of the covenant, *808 to release during the “existence or continuance” of the mortgage, may be interpreted to extend the covenant to a time after condition broken, it would hardly carry it beyond the filing of the bill to foreclose. So far as the mortgagee was concerned, that was a decisive step towards devoting the security to the debt. Delay of judicial procedure is mere favor.

The order appealed from will be affirmed.

For affirmance — Collins, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Nixon, Vredenburgh — 13.

For reversal — None.