Hoag v. Rathbun

This is a bill in the nature of a bill quia timet. The complainants fear that they may be injured by the mortgage, executed by Rathbun to Bennett, and that, as Rathbun is insolvent, they will, in case of injury, have no effective *14remedy against Rathbun, on their covenant of warranty ; and though Rathbun’s mortgage to Bennett is not yet due, the complainants ask that they may apply the balance due on their mortgage to Rathbun, to the payment, as far as it will go, of Rathbun’s mortgage to Bennett. It is a clear principle of law, that, if Bennett undertakes to enforce his mortgage against Rathbun, upon the four lots, that Darrow’s lot, being last conveyed, must be first sold. This lot, with the buildings upon it, is stipulated to be worth $5,000, nearly ; and without buildings, nearly $1,500. The complainants, when they purchased their lots, and executed their mortgages, payable before the time of payment of the Bennett mortgage, must be presumed to have known of the existence of the Bennett mortgage, and likewise of the operation of the above rule of law upon the case. They knew that one- of the four lots was unsold at the time they made their purchases; and they knew that the fourth lot would be first liable for the payment of the Bennett mortgage. They must be presumed to have had confidence that this fourth lot would be sufficient to pay the Bennett mortgage, or that Rathbun’s responsibility would be sufficient; otherwise they would not have given their own mortgages, payable earlier than the mortgage from Rathbun to Bennett.

I am not prepared to say that the court would give no relief, if the complainants were the holders of the Bennett mortgage, or if their lots were first liable for the payment of "it, though the Bennett mortgage is not yet due.

But in this case the complainants can have no cause of action against Rathbun, until they are evic*15ted by virtue of the Bennett mortgage. If there was probable danger of their eviction, under this mortgage, the court might, for the purpose of doing substantial justice, and preventing circuity of litigation, give relief. Insolvency, in cases like this, is a ground of relief, provided the danger of injury to the other party is certain, or even imminent.

But in this case, such does not seem to be the fact. Darrow’s lot is first liable for the payment of the Bennett mortgage; and that, exclusive of buildings, is worth nearly $1,500, a sum amply sufficient to pay that mortgage. ■ If the application of the mortgage moneys, due from the complainants to Rathbun, should be made, as asked for in this bill it would enure to the benefit of Darrow, rather than the complainants ; and Darrow is not a party here. He does not come in and ask for relief; and we do not know what his relations are with Rathbun. It will be time enough to decide upon Darrow’s claims for relief when he asks it. The complainants will have a right to call upon Bennett to collect his mortgage, as soon as it is due, upon the known principles of quia timet bills, or that the complainants’ lots be discharged from the lien of that mortgage. But the complainants have not shewn themselves in such imminent danger of injury,- as to entitle them to the relief they asked for, notwithstanding the insolvency of Rathbun.

The bill is therefore dismissed, with costs to be taxed.