No general rule can be laid down by the Court, to govern it in applications of this kind. Each application must depend, in a great measure, upon its own circumstances, and the sound discretion of the Court. A decree regularly obtained against a party by default should not be opened, unless under special circumstances, and then only to promote the ends of justice. Russell took the mortgage subject to all equities existing *34between the mortgagor and mortgagee at the time it was assigned to him. Livingston v. Dean, 2 J. C. R. 479; Murray v. Lilburn, Id. 441; James v. Morey, 2 Cow. R. 246. He stands in the place of Blanchard, and his rights under the assignment are the rights of Blanchard under the mortgage, and nothing more.
There was no necessity for recording the agreement, which is in the nature of a defeasance. The Revised Statutes, (page 261, $ 32,) refer to conveyances purporting to be absolute upon their face, and not to mortgages.
Waite was misled by his Counsel, who advised him under a misapprehension of the facts; and I do not think the time that elapsed between the discovery of the error and the service of a copy of his petition, with notice of this motion, on the complainant’s Solicitor, should prejudice the present application. The copy and notice were served on May 14th, and Waite did not discover the error into which he had been led by his Counsel, until after the mortgaged premises were advertised for sale.
Let the decree, and the order to take the bill as confessed, be vacated, on Waite’s paying to the complainant’s Solicitor all taxable costs subsequent to, and including the order to take the bill as confessed, and a counsel fee of ten dollars. The order to take the bill as confessed, not to be vacated as against the other defendants.