CASES

ADJUDGED IN

THE COURT OF CHANCERY

OF THE STATE OF NEW JERSEY,

MAY TERM, 1864.

SAMUEL SNOVER vs. DELILAH SNOVER.

Petition to be relieved from contributing to the maintenance of an infant child, on the ground of the father's pecuniary inability to pay the allowance decreed by the court, and that the child should live with the father and contribute to his support, denied; his pecuniary inability not being satisfactorily shown, and the character of his house being such as to render it improper that she should live there.

Mr. B. Williamson, for petitioner.

Mr. Sherrerd, for defendant, contra.

THE CHANCELLOR. When this case was before the court at February Term, 1861, (2 Beasley 261), the petitioner asked to be relieved from çontributing to the maintenance of his child, upon a variety of grounds, most of which were entirely unsupported by evidence. It was further urged that the physical infirmities and advanced age of the petitioner disqualified him from active labor, that he was otherwise not of pecuniary ability to support himself and his VOL. II.

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Snover v. Snover.

daughter, and that in justice to the petitioner as well as to his other children, she should either reside with the father and contribute to his support, or that the father should be relieved from all contribution to her maintenance. An intimation was then made that the petitioner would be heard upon this ground, after the child had attained the age of eighteen years. The application is now renewed, and further testimony in its support has been taken. Upon a careful review of the whole evidence, I feel constrained to deny the application.

It is not satisfactorily shown that the petitioner is not of sufficient pecuniary ability to support himself and make this contribution to the maintenance of his child. The physical disabilities to which he is subject, all existed at the time of making the original order. The allowance for the child's support was probably graduated in some measure by a regard to the physical, as well as the pecuniary condition of the father. It is very small in amount, and obviously inadequate to the maintenance of the child.

The allegations of the answer in this case, as well as the circumstances under which the divorce was granted, show clearly that the father's house is not, and cannot be, a proper home for the daughter, whether the father is now living in lawful wedlock, or in illicit intercourse with another woman than the mother of the child.

None of the petitioner's numerous family of children by the wife who obtained the divorce, and who now resists this application, reside with the father, or make his house their home. They are settled in life, or are supporting themselves. The only proper home for the daughter is with her mother.

Nor is there any mode in which the court, independent of the security already given, can compel the petitioner, being a resident of another state, to maintain his child or contribute to her support, in case of his failure or neglect to do so. There is no propriety in imposing that burden entirely upon the mother, in case of the sickness of the child or her inability to support herself,

Vanderveer v. Holcomb et al.

It is a circumstance entitled to consideration, that the great increase of the necessary cost of living has rendered the allowance to the mother intrinsically of less value than it was at the date of the order for alimony. If this petition. should be granted, it will naturally be followed by a counter application from the mother for an increase of allowance on her own account. It is right in every aspect of the case, that the order should remain undisturbed.

The order restraining proceedings at law for the recovery of the amount heretofore decreed to be paid to the respondent, must be set aside. The arrears should be paid, with interest from the time the instalments severally became due.

The petition is denied, without costs.

HENRY VANDERVEER vs. CHARLES P. HOLCOMB and wife and others.

1. Upon a bill filed by a mortgaged for foreclosure and sale of mortgaged premises, the mortgagor may by his answer set up usury against the claims of a mortgagee, who is made a co-defendant. He will not be driven to a cross-bill, and be thereby deprived of his defence.

2. Where a case is made out between defendants, by evidence arising from pleadings and proofs between plaintiffs and defendants, a court of equity is bound to make a decree between the defendants.

3. If the defendant asks substantial relief, either as against the complainant or a co-defendant, or a discovery, a cross-bill may be necessary. But the court dispenses with the necessity of a cross-bill when the whole matter is before it, and the party is not thereby deprived of any of his substantial rights by a decree in the existing suit.

4. Upon a bill for foreclosure and sale of mortgaged premises, all the subsequent encumbrancers are necessary parties, and to effectuate a complete decree, the existence, validity, order of priority, and amount due upon the several mortgages, must be settled and decided.

5. It is no objection to permitting a mortgagor to set up usury against the claim of a mortgagee, made co-defendant, without filing a cross-bill, that it deprives such mortgagee of the benefit of his answer. If he were complainant seeking to enforce his mortgage, he could have no benefit of an answer to the defence of usury.

Vanderveer v. Holcomb et al.

6. If the lender come into equity, seeking to enforce the contract, the court will give effect to the statute and declare the contract void. But if the borrower seek relief against the contract, the court will prescribe the terms of its interference.

7. If a discovery is necessary to aid a defendant in a defence at law, or otherwise, equity will not require him to answer under oath, and thus be a witness against himself in a matter which will subject him to a penalty or forfeiture, or to any loss in the nature of a forfeiture.

8. A mortgagee, who has dismissed a bill which he had exhibited in his own name for the foreclosure of his mortgage, and to which the mortgagor had set up the defence of usury, and by collusion with another mortgagee has caused a new suit to be instituted, and himself made defendant, has no right to object that he is made a party unnecessarily, or brought into court against his will, and is therefore entitled to a decree for the amount due upon his mortgage. Such mortgagee is in truth the actor, seeking under color of the complainant's rights, to deprive the mortgagor of the protection of the statute as against a usurious claim.

The bill of complaint in this cause is filed by the first mortgagee in order of priority, against the mortgagor and all subsequent encumbrancers, for the foreclosure and sale of the mortgaged premises.

The third mortgagee answers, admitting the prior and subsequent encumbrances, setting up his own mortgage as a valid subsisting encumbrance, and concluding with a prayer that a decree may be made for a sale of the mortgaged premises, and that he may be paid the principal and interest due on his mortgage.

The mortgagor answers, admitting the existence and validity of the complainant's mortgage, but alleging that the complainant procured the assignment thereof to be made to him by collusion with the third mortgagee, and exhibited his bill for the sole purpose of aiding the third mortgagee in recovering upon a void and usurious mortgage. The answer admits the making of the third mortgage, but alleges that the mortgage is usurious and void for the cause set out in the answer.

The answer also alleges that a bill was filed in this court, by the third mortgagee, on the second of June, 1863, for the foreclosure of his mortgage, that the defence of usury was

Vanderveer v. Holcomb et al.

set up by the mortgagor, and that thereupon the complainant in that suit dismissed his own bill, and concerted a plan with the complainant in this suit, by which the third mortgagee might be enabled to recover upon his usurious mortgage, and the defendant be precluded from setting up the defence of usury. The mortgagor disclaims any intention. or desire that a decree should be made in anywise affecting the bond or mortgage of the third mortgagee, except so far forth as a decree in this suit will necessarily affect the same. And he consents that a decree be made which, while it shall declare the bond and mortgage void or nugatory for the purposes of this suit, shall leave the same for all other purposes, unaffected by the decree.

To so much of this answer as alleges collusion between the complainant and the third mortgagee in the filing of the bill, the complainant excepted as scandalous and impertinent; and to so much as relates to the usurious character of the third mortgage, to the institution and abandonment of a previous suit for its recovery, and to the nature of the protection against that mortgage, which the defendant asks, the complainant excepted as impertinent. The master having made his report upon the exceptions to the answer, the case is now submitted upon exceptions to the report,

Mr. J. V. Voorhees, for complainants.

Mr. Richey, for defendants, Charles P. Holcomb and wife. Mr. S. B. Ransom, for defendant, Henry Vanderveer.

THE CHANCELLOR. The material question involved is, whether, upon a bill filed by a mortgagee for foreclosure and sale of mortgaged premises, the mortgagor may by his answer set up usury against the claims of other mortgagees, who are made co-defendants, or whether he will be driven to a cross-bill, and thereby deprived of his defence. A decree between co-defendants may be grounded on evidence between plaintiffs and defendants. It is declared by Lord Redesdale

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