In Morris v. Tuthill, 72 N.Y. 575, which was also a suit to foreclose a mortgage, the court observed: "The facts that the assignor of a mortgage and his assignee acted in concert with a view unnecessarily to harass and oppress the mortgagor, and with intent to prevent payment, to the end that the equity of redemption might be foreclosed, and they become purchasers for less than the value, do not constitute a defence to an action to foreclose a mortgage.Summary of this case from Dickerman v. Northern Trust Company
Argued February 12, 1878
Decided February 19, 1878
George Miller, for appellant. Rob't S. Green, for respondent.
The facts stated in the second answer of the appellant as amended, unexplained and uncontradicted, might justify the inference that the plaintiff and the former holders and owners of the mortgages in suit have acted in concert, with a view unnecessarily to harass and oppress the appellant, and with intent to prevent the payment of the amounts due upon the securities, to the end that the equity of redemption might be foreclosed, and they become the purchasers of the fee of the property for less than its value. But they do not tend to show that the mortgages have been satisfied or that the full amount claimed is not due thereon, or that the plaintiff is not the legal holder and owner, and entitled to maintain this action. The proceedings for the foreclosure by advertisement, and the means taken to obstruct and embarrass the appellant in his efforts to raise the money to redeem his property and prevent the sale, may be laid out of view, as these proceedings were discontinued.
The motives of the former owner of the mortgages in selling, or of the plaintiffs in buying them, are not material, and the appellant has no concern with the consideration of the assignment. It is sufficient that the mortgage debt is due, and has been transferred to and is now owned by the plaintiff. He may have bought it from motives of malice toward the defendant and solely with a view to sue upon them, and the former owner from a like motive may have transferred them without consideration, but this would not constitute a defense to the action. The appellant can only arrest the action by paying the amount due, or tendering the same and bringing it into court. The facts stated do not constitute an equitable defense to the mortgages, or impeach the plaintiff's title.
The matters stated are wholly irrelevant, and the answer was properly stricken out.
The order must be affirmed.