Clark v. Havens

This affidavit is not sufficient. The “ Act to reduce the expense of foreclosing mortgages in the court of Chancery,” passed May 14, 1840. Section 8 prescribes the character and contents of the notice of the pendency of the suit, to be filed by the complainant in the office of the clerk of the county in which the mortgaged premises are situated. It is to contain, 1. The names of the parties to the suit, and the object of the suit; 2. The date of the mortgage, by whom and to whom executed ; 3. The time when the mortgage was recorded, and the office in which it was recorded ; 4. A description of the land mortgaged, &c. THe 7th section provides that the Chancellor shall make such general rules as he may deem reasonable, for disposing of foreclosure cases where the bill has been taken as confessed, so as to dispense with entering such causes upon the calender, and bring the same to a hearing at other times than at a general term. In pursuance of this provision, the Chancellor has amended the 134th and 136 th • general rules of this court, to meet the expressed intentions of the legislature. By the 134th rule the complainant may apply for a decree upon any regular motion day. Upon *562such application he must show, by affidavit or otherwise, L Whether the bill has been taken as confessed against any of the. defendants as absentees, who ^ave not appeared in the suit; 2. That a notice of the pendency of the suit, in the form prescribed by the above act, has been filed with the clerk of the county in which the mortgaged premises- are situated, at least forty days previous to the hearing of the motion. The first branch of necessary proof is in place of the former affidavit of regularity, and is necessary to enable the court to determine whether the master’s report complies with the provisions of the statute in relation to absent defendants. The second branch of proof is made necessary by the act of 1840. One would suppose that the directions of the rule and statute are so plain, that a solicitor who looked at either, could hardly make a mistake. Yet a great number of applications for decrees are constantly refused at every regular motion term, for defect in such proofs. In this case, after the filing of the notice of the pendency of the suit, the bill was amended by making new parties defendant. No new notice was filed. It is very clear that the notice first filed does not contain “ the names of the parties to the suit” within the statute, as the case is presented for a decree. The lis pendens is not in the same suit in which a decree is asked, and does not meet the terms of the statute. If a complainant amends his bill by adding defendants, he must file a new notice of lis pendens in the county clerk’s office, before he can obtain a decree in this speedy manner; and proof of such filing must be furnished at the hearing. In this case, too, the complainant has produced no proof • whether his bill has been taken as confessed, against *563any of the defendants as absentees, who have not appeared in the suit, as rule 134 requires. The first . defect in the affidavit above suggested, is a failure to comply with the directions of the statute: the last is a failure to comply with the rule; and the complainant cannot have a decree upon these papers.(a)