Wolcott, administrator, &c. vs. Sullivan & Hull, 6 Paige Ch. 117

The Chancellor. I agree with the vice chancellor that this is not a case where, in equity, one debt Would necessarily compensate the other, even if the bond and mortgage had originally been in fact the property of the defendant Sullivan.

And as there was no agreement, contained either in the bond and mortgage or in the lease, that the interest or principal which was to become due on the bond and mortgage should be offset against the rent, either party would have been authorized to proceed at law for the recovery of the whole of his debt; subject to the legal right of the adverse party to offset what was then legally due to himself, if he thought fit to assert that right.

But when a party comes into this court as a complainant to obtain equitable relief which a court of law is incompetent to give, he must be able to satisfy the chancellor that the claim set up by him is both just and equitable, before he will be entitled to the aid of this court to enforce that claim.

In the case under consideration, if Wolcott at the time this bond and mortgage were given had been aware of the fact that the money loaned belonged to another person, and that Sullivan had no right to pledge it for the security of his own debt, there could have been no pretence of an equitable claim of set-off, even if there had been an express agreement to that effect between him and Sullivan.

In the absence of any such agreement, and when the fact was ascertained by the complainant that the bond and mortgage bad belonged to another from the beginning, to entitle him to equitable claim to offset the rent which has subsequently accrued upon the lease he is bound at least to show that the rent could not have been collected from Sullivan, the real debtor. The complainant had actual notice of the rights of Commodore Hull, as early as March, 1830, and was then forbidden to pay the principal or the interest of the mortgage to any other person, without a written order to that effect.

And if the complainant then intended to retain a part of the mortgage money as a security for rent which might thereafter become due, either under a verbal understanding to that effect with Sullivan or otherwise, be should have apprized Hull thereof; so that the latter might have taken the proper steps to indemnify himself against future loss.

In any view, therefore, which I have been able to take of this case, I cannot discover that the complainant has any equitable claim to relief against the payment of the whole of this mortgage, and the interest thereof since the first of May, 1830 ; and he must look to Sullivan for the payment of the rent which has accrued since he had notice of the assignment of the bond and mortgage to the real owner. That part of the decree which was appealed from by the complainant was not erroneous; and it must be affirmed with costs, to be paid to Hull, the respondent in that appeal.

The decision of the vice chancellor was also right as to that part of the decretal order which is appealed from by the defendant Sullivan. So far as I can understand the allegations in the very singular answer of this defendant, there is no distinct allegation of a breach of the covenant as to the repairs which were to be made upon the premises previous to the commencement of the term. He complains that he lost $150 rent, because the house was not kept in tenantable repair in the roof, according to the covenants in the lease.

As the tenant had secured to himself the right to make the necessary repairs, and to deduct the expense thereof from the rent, he cannot claim any extra compensation by way of damages; especially as he does not allege in his answer that he gave notice to the lessor, or his agent, that the premises wanted repairs after the commencement of the term.' The claim made by Comfort Sands formed no excuse whatever for the non-payment of the rent, as it is not alleged by the defendant that he had any reason to believe, or did in fact believe,that such claim was well founded or could be sustained.

As the bond and mortgage which the complainant sought to redeem were given to the defendant Sullivan, and the suit, if any, upon the bond, must be brought in his name, I am not prepared to say, under the circumstances of this case, that the complainant had not a right to make him a party to a bill to redeem, although he was not such a necessary party as to have authorized the defendant Hull to demur to the bill on that ground if he had not been made a party to the same.

The objection, that the complainant had a perfect remedy at law against Sullivan for the recovery of his rent, is not made in the answer of this defendant in such a form as to enable him to take advantage of it at the hearing. The only allusion to a legal remedy is in the impertinent part of the answer, in which the defendant has very improperly attempted to bring his private misunderstandings and controversies with the complainant’s counsel before the court.

And it is not there insisted on as a defence to the suit, but merely as a reason for believing that the counsel was influenced by malice in the filing of this bill. It was therefore too late to make the objection for the first time at the hearing, that this court had not jurisdiction of this case as to the relief asked for against the defendant Sullivan. And the question as to the complainant’s right to the rent having been fully litigated by both parties in this suit, it would have been improper to turn the complainant around to a suit at law for the recovery of such rent.

So much of the decretal order of the vice chancellor as is appealed from by the defendant Sullivan must therefore be affirmed, with costs to be paid by him to the respondent, the. personal representative of O. Wolcott, deceased.