Moore's Lessee v. Pearce

Hanson, J. sat alone when the special verdict was argued, and delivered the following opinion: In this case there are three plausible arguments on the side of the defendant. First. That the deed, conveying the lands in question to the plaintiff, from the defendant, and the plain ²³⁹ tiff’s bond to the defendant for reconveyance, must be taken together, to constitute a mortgage ; that the debt, for which this mortgage was given, has been extinguished since the commencement of the action, by the tender of principal, interest and costs ; and that after this extinction, the mortgagee can be considered in no other light, with respect to his title in the land, than as the trustee of the mortgagor; that it is a settled point, that a trustee cannot recover in ejectment against cestui que trust; and further, that no man shall recover in ejectment against the contract contained in his own bond or covenant. Second.

That if the above argument be not conclusive in favour of the defendant, he is, notwithstanding, entitled to the judgment of the Court, under the statute of 7 Geo. II. c. 20. having done that, since the commencement of the action, which amounts in law to a complete payment of principal, interest, and costs. Third. That if the said statute, in its directions respecting payment cannot be complied with by any, unless an actual payment, its directions respecting a tender are sufficiently complied with in the present case, by the tender of principal, interest, and costs, -without bringing the money into Court; that the said statute required money to be brought into Court after tender and refusal, for no other reason than because it was still due to the plaintiff; that under the operation of the tender law, the money tendered for principal, interest, and costs, doer, not remain due after the tender and refusal, and therefore there can be no necessity for bringing it into Court 5. that the direction of the said statute for that purpose, is to be considered as repealed by the tender law, or at least suspended during the existence of that law.

It cannot be denied, that modern decisions in the Courts of Westminster, have settled the law, that aman shall not recover in ejectment, either where he has ²⁴⁰ passed such a bond or covenant as will entitle the defendant to relief in equity,, against the judgment at law ; or where there have been such transactions between the parties, as make the plaintiff, in effect, to be no more than a trustee for the defendant. In the present case, it is far from being clear, that the defendant, after judgment in this Court, may obtain relief in chancery, either on account of the bond, or on account of the tender and refusal. On the contrary, I am thoroughly persuaded, that the Chancellor, on the circumstances only, stated in this special verdict, will not grant a perpetual injunction for precluding the plaintiff from the benefit of his; judgment here. That the Chancellor, on a bill to foreclose, (had such a bill been preferred in chancery by the present plaintiff, after the tender of the whole debt in paper,) that the Chancellor, in that case, I say, must have considered the debt extinct under the tender law, and must, therefore, have dismissed the bill, I verily believe, because there would be no debt existing, whereon to ground the foreclosure.

But the plaintiff has taken a better course, and there is nothing in that law to oblige the Chancellor, on the circumstances stated in the verdict,, r.o grant a perpetual inj unction for staying the proceedings- in this Court. Should the defendant apply for such injunction, I have no doubt that the Chancellor would tell him, u In this Court, no man can obtain relief, without first doing justice himself. You say, that it is unreasonable for the plaintiff at law to obtain possession of that land, which was only mortgaged to him for a debt which no longer exists. But have you conscientiously discharged that debt ?

You have only proved the tender of bills of credit, which (had they been actually received) would not have been a conscientious discharge of the debt; and,