Hall v. Cushman

On the facts, as they appear in this case, the petitioner is entitled to redeem. In arriving at this conclusion it is not necessary to consider any other facts in detail than those which occurred at the time of the conversation between the defendant and one of the petitioners, in the last of the year 1837, or in January, 1838.

That visit to the defendant was somewhat ceremonious. The petitioner was accompanied by his counsel, and his inquiries were directly turned to the nature and extent of the defendant’s claim ; and Cushman of course understood that they had reference to the value of the second mortgage, and the question of redeeming the one which he held. In short, the application was in the nature of a call for an account, and the defendant so received it. He did not refuse to com*174ply with the request, but yet he did not comply with it. He seems to have desired to waive that question, for the time at least. His wish evidently was to do nothing to impair his indemnity, and at the same time to encourage the ■subsequent mortgagee. “ He did not expect to look to the mortgage for indemnity, but, if there should be a small balance due him, he would notify the petitioner or his counsel.”

This voluntary agreement of the defendant can be interpreted no otherwise than as an express stipulation on his part, that, in case he should be compelled to resort to the mortgage, he would render an account. He promised to notify the other party or his counsel. This could not have been meant or understood, on either side, as merely such general notice as the statute makes necessary in order to perfect a foreclosure. Such notice they would of course have. The defendant’s promise to give them notice in that way would neither have lessened or increased their rights or his duties.

It should be observed that this court is not called upon, and does not undertake in the present case, to enforce this agreement specifically, as a contract; but we cannot allow the defendant to set up, as an answer to this petition, a foreclosure which he has obtained by the neglect of his promise to the petitioner; in other words, .through bad faith and fraud. Whether the promise was originally made in good faith or not, it has not been faithfully kept. The declaration was one upon which the petitioners might well rely ; and it was certainly fraudulent for the other party, who made it, to attempt a foreclosure under the ordinary provisions of our law, without giving the stipulated special notice.

The right to redeem, therefore, remains open to the petitioners until he shall have complied with his engagement, .and rendered to them an account.