The complaint in this action is in the nature of a judgment creditor’s bill. The judgment of the plaintiffs was recovered in 1860, against the rector &c. of Christ church &c., and it is here sought to have a mortgage *586made by tbe church to the testator of the defendants, Cooper, declared to be invalid, and the foreclosure thereof perpetually enjoined. The mortgage was made in 1847, to secure a sum of money borrowed by the church at that time for the purpose of repairing the church edifice, and actually so expended.
The ground of the plaintiffs’ claim, apparently so extraordinary, is that no authority or permission was ever obtained from the court of chancery or the supreme court to execute any such mortgage on the property of the church, as it is insisted that the statutes of this state require. (3 R. S. 298, [old ed.] §§ 4, 11.) It does not, however, appear to be necessary to determine the question sought to be presented. The plaintiffs have a complete and effectual remedy at law, if their theory be correct, by a sale of the mortgaged property, or some other property of the church, on execution, which they have not yet attempted.
The executors of the mortgagee have not brought the plaintiffs into court, or asked for any relief against their rights at law. It is the plaintiffs, on the contrary, who have become the actors, and are now demanding in a court of equity the enforcement of a forfeiture against the holders of a mortgage, the bona fide consideration of which is not questioned. It is not even claimed that the mortgage, at the time it was executed, caused the plaintiffs any injury. They fail to show any statutory right to maintain this action, or any paramount equity in their favor.
The plaintiffs must exhaust their remedy at .-law, by the issue of an execution and a return thereof unsatisfied, in whole or in'part, before they will be in a condition to demand the judgment of a court of equity as to the validity of the mortgage in question. (The North. Am. Fire Ins. Co. v. Graham, 5 Sandf. S. C. Rep. 197. McCullough v. Colby, 5 Bosworth’s R. 487. Also other cases referred to in those reports.)
Affirmative relief to enforce a forfeiture is not usually af*587forded in equity, unless it is enjoined by' statute, as in the case of usury.
[New York General Term, May 5, 1862.The order appealed from should be affirmed with costs.
Ingraham, P. J.Without being considered as assenting to the proposition that a religious corporation may mortgage real.estate without the consent of the court, as required by statute in cases of sales of real estate, I concur in affirming the order appealed from, on the ground that the plaintiffs do not show in their complaint any right to this remedy. There is nothing to show that the plaintiff’s debt is not amply secured, even if the mortgage was enforced; or that they have been unable by execution to obtain payment of their .judgment.
If the equity of redemption had been purchased-by them under execution, they might present better grounds for relief. The order should be affirmed.
Barnard J. concurred.
Judgment affirmed.
Ingraham, Leonard and Barnard, Justices.]