Hosford v. Nichols

The Chancellor :—The objection for want of parties is not well taken. Although French and others are interested in the proceedings in this cause, they are not necessary parties. Their assignment to the complainant is absolute and unconditional; and although by the covenant therein they are responsible to her in case she does not succeed in recovering the money on the mortgage, it would have been improper to have made them complainants. Eeither was it necessary to make all the owners of the land covered by the mortgage parties to the suit. It is stated in the bill, and admitted in the answers, that the one hundred and fifty acres remaining unsold is amply sufficient to satisfy the mortgage debt. Eo question of contribution can arise, as by the settled law of the court that part of the premises must be first applied to satisfy the mortgage. If the complainant chooses to rely upon that security alone, it does not lie with the defendants to object that she has omitted to increase the costs against them by unnecessarily making the owners of other parts of the lot parties to the suit.

The objection that the mortgage was purchased with moneys raised by the sale of the lands of Nichols, under a void execution, is not supported by the proofs in the case. There is no judgment, execution or sheriff’s deed produced to support the allegation in the answer. If the sale was regular, Nichols has no right to complain of the application of the purchase-money; and if the proceeding was void his title was not affected thereby, and he has no claim to the amount of the nominal bid.

The defendants have also failed in showing that nothing passed by the assignment of the mortgage to Judd. The objection of the complainant to the parol proof of the assignments by Elisha Kane is well taken. The original assignment should have been produced and proved by the subscribing *witness, or some evidence should have been given that it was impossible to obtain it. But if such evidence had been adduced, I think there is sufficient testimony in the case to show that in 1815 the equitabl interest to the balance due on the mortgage belonged to James Kane, so that nothing could pass by the assignments under the insolvent laws of the United States, or of Pennsylvania. If so the complainant obtained both the legal and equitable title to the mortgage through the assignment made to Judd by Elisha Kane, with the assent of his brother, who had the equitable interest. As to the question of usury, I am inclined to think, under the circumstances, whatever may be the laws of Pennsylvania on the subject, that the mortgage reserving New York interest cannot be considered as usurious. In this case, the contract for the sale of the land was made in this state, and while both parties resided here. I think it is fairly inferable from the testimony that the subsequent giving of a deed and securing the balance of the purchase-money by a mortgage on the premises, was only a consummation of the original bargain made here, and not in pursuance of any new agreement to extend the time of payment.

Whether a contract made here for a sale of lands in another state, on credit, reserving interest at the legal rate of the place where such lands are situated, would be void, if such rate of interest exceeded the amount allowed by our laws', is a question which does not appear to be settled by any decision of our courts. The question was raised in Van Schaick v. Edwards, (2 John. Cas. 355,) and the judges were divided in opinion, and the cause was finally decided on another ground. In Dewar v. Spark, (3 T. R. 425,) the Court of King’s Bench held that a bond given in England in pursuance of an agreement to give further time of payment for the purchase-money on a West India sale, reserving six per cent, interest, was usurious and void.

It is a general rule that interest is payable agreeably to the law of the place where the contract is made. But in Fanning v. Consequa, (17 John. R. 511,) the Court of Errors decided, that where a contract was made in reference to the laws of another country, and to be performed there, *the interest was to be calculated agreeably to the laws of the country where the contract was to be performed.

It is a well settled rule, that any title or interest in land or real estate can only be acquired or lost agreeably to the law of the place where the same is situated.[1] And this principle applies as well to mortgages as to conveyances absolute, (Cutler v. Davenport, 1 Pick. R. 81.) If a statute of Pennsylvania should declare all deeds executed in that state void, wherever the lands might be situate, unless they were executed in the presence of two witnesses, can there be any doubt that a deed of lands in this state, executed there, in the presence of one witness only, would be valid if it was afterwards acknowledged and recorded here agreeably to our own laws ? In the case before me, the mortgage, after its execution in Philadelphia, was duly acknowledged in this state before one of the judges of the county of Onondaga. Whatever, then, may have been the legal effect of its original execution at Philadelphia, by this subsequent act of the mortgagor it became a good and valid lien upon the land for the security of the purchase-money, and New-York interest, agreeably to the laws of this state. It is also too late for the mortgagor to object that the bond was illegal and void. An action has been brought against him in a court of this state, and the judgment obtained thereon is conclusive evidence against him as to the validity of the bond.

Again, there is no evidence in this case to show that the bond and mortgage were not both valid by the law of the state where they were originally executed. E. Kane testifies that at the time of their date, and for some years previous, six per cent, was the legal rate of interest in Pennsylvania. But it does not appear that any law existed in that state which prohibited the parties from agreeing upon a higher rate of interest, or declaring securities void in which a higher rate of interest was reserved. And courts of this state cannot take notice of the laws of other states unless they are proved in the same manner as other facts, (Thompson v. Ketchum, (8 John. 189; Church v. Hubbart, 2 Cranch, 186.)

*The result of this opinion is, that the mortgage, in the hands of the complainant, is a valid and subsisting lien on the premises; and she is entitled to satisfaction of the amount due thereon, with interest, at the rate of seven per cent., after deducting the payments which have been proved, and the costs of this suit, out of that part of the 150 acres remaining unsold, and described in her bill of complaint, which is not covered by Monk’s mortgage; and if that is insufficient, the 80 acres covered by Monk’s mortgage must be sold, and the deficiency satisfied out of the proceeds thereof.

There must be a reference to a master to compute the amount due to the complainant on her bond and mortgage, and to the defendant Monk, on his; and on the coming in and confirmation of the master’s report, the 150 acres, or so much thereof as may be necessary, must be sold in manner aforesaid on the usual notice, and out of the proceeds of the sale the master must pay to the complainant the amount reported due to her, with interest and costs; and the defendant Monk will be entitled to his costs out of the residue. And if the 80 acres is sold, he will also be entitled to have the surplus, or so much thereof as is necessary, applied to satisfy the amount due on his mortgage; and the residue of the purchase-money, if any remains, must be brought into court to abide the further order thereof. The master to execute deeds to the purchasers; and the defendants, and all who have come into possession under them, must deliver up to the purchasers peaceable possession of the premises, on producing the master’s deed and a copy of the order confirming the report of the sale.