Noyes v. Anderson

• Decision Date: 14 January 1891
• Citation: 26 N.E. 316,124 N.Y. 175
• Parties: NOYES v. ANDERSON et al.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 175

26 N.E. 316

NOYES

v.ANDERSON et al.

Court of Appeals of New York,

Second Division.

Jan. 14, 1891.

Appeal from order of the general term of the court of common pleas of the city of New York, reversing judgment entered on the decision of the court at special term, and granting a new trial. The action was brought in 1887, to foreclose a mortgage of date January 1, 1884, made by the defendant Anderson and her husband, John J. Anderson, upon certain premises in the city of New York to secure the payment of $12,500 and interest to the plaintiff on the 1st day of January, 1885, according to the condition of a bond of the mortgagors. The husband died in January, 1885. The defendant Anderson by her answer set up an agreement made and delivered by the plaintiff to her October 2, 1885, which, after recital referring to such bond and mortgage, stated that in consideration of certain agreements made by said Theresa A. Anderson in and about the settlement and adjustment of the action then pending in the court of common pleas, wherein Noyes, as executor, etc., was plaintiff, and she was defendant, and of one dollar to him in hand paid, ‘I. Daniel J. Noyes, do hereby covenant and agree with the said Theresa A. Anderson that, during the natural life of Theresa A. Anderson, and for one year after her decease, I will not institute or permit to be instituted any proceedings, at law or otherwise, to enforce the aforesaid bond and mortgage held by me, so long within said period as the prior mortgages remain unforeclosed, and no interest on said prior mortgages, or either of them, remains unpaid for more than thirty days after the interest shall have accrued and be payable by the terms thereof, and so long as no taxes or assessments on the said premises remain unpaid and in arrears for more than thirty days.’ It having been stated by the plaintiff in the complaint that the premises were incumbered by an assessment amounting to $23.08 for sewer improvement made and confirmed in March, 1886, which remained unpaid, the defendant, by her answer, alleged that she had no knowledge of such assessment until about April 28, 1887, when she promptly caused it to be paid; and she asked for the judgment of the court that she be relieved from the consequences of her omission to pay such assessment. The summons and complaint were filed with the clerk, and served upon defendant Corwin, who had an apparent lien by judgment, on April 27, 1887, and lis pendens was filed on that day, and, pursuant to an order of publication made April 29th, the summons and complaint were personally served upon the defendant Anderson at Chicago, in the state of Illinois, on May 5, 1887. The trial court directed judgment for the plaintiff.

@FOLLETT, C. J., and PARKER, J., dissenting.

Thomas Allison, for appellant.

Charles Donohue, for respondent.

BRADLEY, J., ( after stating the facts as above.)

The agreement of October 2, 1885, by which the plaintiff agreed that no proceedings should, upon certain conditions, be taken to enforce the bond and mortgage during the life of Mrs. Anderson, and for one year thereafter, was founded upon a good consideration; and, inasmuch as she had been in default in payment of the sewer assessment more than 30 days at the time of the commencement of this action, the main question is whether she was, under the circumstances, entitled to relief against the consequences of such default. At the time the agreement was made the principal sum secured by the bond and mortgage had become due and payable. The prior mortgages, amounting to $20,000, with that held by the plaintiff, amounted to a sum exceeding the value of the premises; so that the only value of the equity of redemption to the defendant was in the observance of the plaintiff's agreement to postpone the foreclosure of the mortgage. In view of those circumstances, and of the fact that the defendant was known to be insolvent, it is evident that the purpose of the agreement was to protect her equity of redemption. This was her estate in the premisses, and the right to her enjoyment of it was wholly dependent upon the forbearance of the foreclosure of the plaintiff's mortgage, provided no action should be taken on the prior mortgages. And the arrangement resulting in the agreement was made to enable her, so far as the observance of its provisions permitted, to have the benefit of such estate during her life. The right, therefore, to maintain this action to foreclose the mortgage was dependent upon the failure of the defendant to perform some condition in the agreement, and a forfeiture of her right to the further protection under if of her equity of redemption.

The power of a court of equity, in cases properly requiring it, will be exercised to relieve a party against forfeitures and from penalties, and this is upon the principle of equity jurisprudence that a party having a legal right shall not be permitted to avail himself of it for the purposes of injustice or oppression. The doctrine was applied to relieve a mortgagor from the forfeiture to which he was subjected, and an obligor from the penalty with which he was chargeable, by the common law, on default. It is also not only available to cases of leases where forfeiture of the term and entry are provided for as the consequences of non-payment of rent on the day it becomes due, but is extended to other cases, and more especially to those (although not necessarily confined to them) where the default resulting in forfeiture is in the payment of money, as in such case adequate compensation can be made. 1 Pom. Eq. Jur. §§ 433, 450, 451. This relief will not be afforded in cases where the default and forfeiture have been occasioned by the willful neglect of the party seeking it. Nor will it ordinarily be given where the breach is of a condition precedent, although that rule may not be without exception. In the present case the default was in the performance of a condition subsequent, because the right of the plaintiff under the contract vested on its delivery subject to the provision that it should be avoided or rendered insufficient by a subsequent breach of the conditions, or any of them, upon the observance of which the defendant's right given by the contract depended. And the defeat of such right by her default, which the plaintiff by this action seeks to make available for the foreclosure of the mortgage, would result in a forfeiture from which, or the consequences of it, the court, upon the principle before mentioned, may have relieved the defendant, if...