| Volume 200, Volume 2, Page 323 View pdf image (33K) |
 |
|
|
 |
|
|
WILHELM VS. LEE. 333 The rule appears to be perfectly well settled, that a mort- gagee may sue at the same time at law upon his bond or cove- nant, and in equity upon his mortgage; the case of a mortgage forming an exception to the general rule, that a party shall not be permitted to sue at law and here, at the same time, for the same debt. Indeed, the general rule itself applies only to cases where the demand at law and in equity are equally per- sonal, and not where the cumulative remedy is in personam, while the other remedy is upon the pledge. The remedy in this court, upon the mortgage, is in rum, and that at law in personam. Dunkley vs. Van Buren, 3 Johns. Ch. Rep., 330; Jones vs. Conde,6 Johns. Ch. Rep., 77. In 4 Kent, 183, the Chancellor says: "The general rule is, that the mortgagee may exercise all his rights at the same time, and pursue his remedy in equity upon the mortgage, and his remedy at law upon the bond or covenant accompanying it, concurrently." The counsel for the defendant supposes that the rule upon this subject in New York, is founded upon the prohibition now existing there, which forbids the sale at law of the mortga- gor's equity of redemption. But the rule permitting the mortgagee to pursue his rem- edies at law and in equity, existed prior to the prohibition, which is the creature of the revised statutes, and cannot, therefore, be founded upon it. It is true, as suggested by the commentator, there were, before the statute, difficulties attending the sale of the equity of redemption; but these dif- ficulties did not induce the Court of Chancery to forbid the mortgagee to proceed at the same time at law and in equity ; though they subsequently induced the legislature to interdict the sale at law of the mortgagor's interest. The argument of the defendant's solicitor in this case is, that, as the judgment and execution at law will give the credi- tor all the advantages of a decree, and, indeed, advantages which the decree will not give, there can be no necessity for harassing the defendant with a double suit, and subjecting him to useless costs. It is by no means so clear, however, that the |
| |||
|
| ||||
|
| ||||
Please view image to verify text. To report an error, please contact us.
Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 2, Page 323 View pdf image (33K) |
|
Tell Us What You Think About the Maryland State Archives Website!
|
An Archives of Maryland electronic publication.
For information contact
mdlegal@mdarchives.state.md.us.
Maryland State Archives