Andrew Rublee vs. Jasper Chaffee et al., 8 Vt. 111

The opinion of the court was delivered by Williams, Ch. J. — It appears that the defendant in this case is in possession of the premises demanded under Seneca Page to whom the plaintiff conveyed the same by deed of mortgage. The mortgage was foreclosed by a decree of the court of chancery in 1831. The plaintiff now seeks to recover on his original title, and defeat the title of Seneca Page on the ground that the mortgage was void, as usurious, and this brings in question the effect of the decree in chancery. Rublee the present plaintiff appeared in the suit in chancery, and was heard on the decree.

The object of a bill of foreclosure is to extinguish the equitable right of a mortgagor and to obtain a satisfaction of the debt secured by the mortgage. It is competent for the defendant to deny the legal right of the complainant, and to avoid the security or mortgage.

After a decree of foreclosure a defendant in the suit in chancery should not be at liberty to impeach the legal title on any ground which would have been a good defence to the bill, brought to obtain the foreclosure, The bill is founded on a legal title., and as between the immediate parties to such bill arid those claiming under them the decree must on this point be in the suit in chancery instituted by Seneca Page. Mr.

Rublee the plaintiff in this suit appeared, consented to a decree that the bill should be taken as confessed, appeared before the master, exhibited his proof, as to the usury contained in the notes mentioned ; the master made his report thereon, a decree was made by the court' expunging from the debt what were claimed or proved to be usurious, and a decree of foreclosure made for the residue.

The plaintiff in this suit who was defendant in the suit in chancery, has therefore had an opportunity to contest the legality of the mortgage, and waived it by consenting to the decree that the bill shoulda be taken as confessed, has claimed and had the benefit of having the usurious part of the debt expunged, and for the sum he justly owed, a decree has passed against him. This subject in relation to the legal title of the plaintiff must be considered as being once adjudicated upon by a court of competent jurisdiction.

Furthermore, by neglecting to pay the mortgage, he has been foreclosed of his equity of redemption. The effect of that proceeding is, that the orator therein Mr. Page took the land in satisfaction of the debt ascertained to be due, The plaintiff therefore cannot disturb him or those who claim under him in the possession of the land, which he obtained by virtue of, and holds under the decree. To permit this would render the proceedings to the bill in chancery nugatory and useless, as it would neither extinguish the legal, or equitable right of Mr.

Rublee if he can again’ contest, the validity of the mortgage and the validity of the notes secured in the condition, notwithstanding the whole subject has once been before a court of competent jurisdiction. It appears by the master’s report that Mr. Rublee was justly indebted to Mr. Page before executing the mortgage in a sum of money for which Page might have maintained an action, notwithstanding the security by mortgage was void. Mr.

Page was by the plaintiff permitted to obtain a decree which with the possession under it, is declared to be a satisfaction of his whole debts due before as well as by the mortgage. The court consider the plaintiff is precluded from attempting to set aside the mortgage 011 the ground of usury. The judgment of the county court must therefore be affirmed,