Guerin v. Danforth

McCay and Montgomery, Judges,

concurring.

My brother Montgomery and myself are not exactly prepared to say that the judgment of foreclosure is conclusive against the purchaser, who was no party to the judgment. There seems to us a violation of principle in holding that a judgment against one who has parted with the title at the time the petition for foreclosure is filed should bind the owner of the land, who has no opportunity to have his rights in the premises adjudged. But however this may be, we think the judgment in this case ought to be affirmed; the failure to sue was in pursuance of a contract made by Guerin for the delay, and however the mortgagor might have had a right to complain, Guerin is estopped from taking advantage of an act of indulgence, procured by him and for his convenience. This would be grossly unjust. As he procured the delay, he is estopped from saying it was improperly done. A man cannot blow hot and cold in this way. He must abide by what he has led the plaintiff to do. We think, therefore, the judgment out to be affirmed.