Stoddard agt. Denison.

gor, unless, perhaps, upon his failure for a sufficient length of time to asser this right. Story says, (2 Story Eq., § 1031,) the equity of redemption may be asserted by the mortgagor, "if he brings his bill to redeem within a reasonable time." (Kemp agt. Westbrook, 1 Ves., 278; Harrison agt. Hart, Comyns R., 392, 411).

Such equity can be extinguished, therefore, only in some of the modes which have been suggested, namely, by a judicial decree, a sale under the power contained in the mortgage, or possibly by lapse of time. If the mortgagee resorts to none of these remedies, it is clear that the mortgagor may, certainly within a reasonable time after forfeiture, notwithstanding his default, assert his right in equity to redeem.

Where a mortgagee, after default, brought trover against a person claiming under the mortgagor for a conversion of the chattel, the court held (Hinman agt. Judson, 13 Barb., 629,) that there was a clear right of redemption in equity in the mortgagor, and that such right had not been extinguished at the time the suit was commenced. The mortgagee had never taken possession or sold the property. In that case the defendant, in effect, was allowed to redeem, the recovery being limited to the amount due the plaintiff, instead of being for the value of the property.

To extinguish the equity of the mortgagor after forteiture, by a sale under the power contained in the mortgage, it must be a fair and bona fide sale. Such is the language of many of the cases. In Charter agt. Stevens, (ubi sup.,) it is said the equity may be extingushed "by a fair public sale"; and in Chamberlain agt. Martin, (43 Barb., 610,) the end may be attained, the court say, 66 assuming such sale to be fair and bona fide."

In needs, however, no citation of cases to establish a principle so obviously just, that an unfair or fraudulent sale of mortgaged property by the mortgagee should and will not defeat or extinguish the equitable rights of the mortgagor. The mortgagee has no right, by any unfairness, to

Stoddard agt. Denison.

sacrifice the property and deprive the mortgagor of a surplus over the debt, which, by an openly conducted sale, might arise. His absolute legal title does not enable him to deal with the property quite as though it was his own, and the remark, apparently to the contrary, of Justice GRIDLEY, in Dane agt. Mallory, (16 Barb., 53, 54,) is qualified. He says, "especially as against the plaintiffs, who are mere strangers." And I cannot think Justice WELLES, when he said, in Talman agt. Smith, (ubi supra,) the mortgagees "had a right to take the property into their possession, and dispose of it at their pleasure," intended to assert that they could make an unjust and unfair sale to the prejudice and injury of the mortgagor.

I

Questions involving the rights and interests of the parties to a chattel mortgage have usually arisen in actions at law. In those actions it has uniformly been held that the legal title of the mortgagee was so absolute and perfect that it could not be divested or disturbed in such an action. have not been able to find any case of a proceeding in equity to assert the right of redemption, either before or after forfeiture. But it is everywhere assumed and conceded that such a proceeding may be instituted and will be entertained.

It follows from all this that the mortgagor's only remedy is by seeking relief in equity, whether he seeks to redeem before or after forfeiture. The dicta in all the cases to which I have referred is to that effect; and although perhaps, mere dicta, is entitled to all the weight of authority.

Nor do I see how an action at law can be maintained under any circumstances. Not even where the mortgaged property has been wrongfully and unfairly disposed of. So far as the legal rights or obligations are concerned, a mortgagee may treat the property as his own, and if he squanders, destroys it, or gives it away, he incurs no liability at law. The party aggrieved must go into a court of equity, which alone can afford him redress.

Stoddard agt. Denison

It is evident, therefore, that the plaintiff in this action has mistaken her remedy, and instead of an action to recover damages for a wrongful sale of the property, she should have invoked the aid of the equitable powers of the court, in the nature of an action to redeem.

I have not without much hesitation and doubt, satisfied myself that the defendant having, by a sale of the property, put it beyond the power of the court to allow a redemption, so as to reinvest the title in the mortgagor, the plaintiff might not be excused from going into equity, and be allowed to be compensated in this form of action, inasmuch as no other relief can, under the facts of the case, be awarded in equity. But upon consideration I find what appears to me an insuperable difficulty. Relief in equity can be granted, ex æquo et bono, only upon payment or tender of payment, of the whole mortgage debt. That must be averred and proved; and it lays at the foundation of the only remedy of the plaintiff in this case. Had the sale of the mortgaged property realized sufficient to have satisfied the debt together with the costs and expenses of sale, then, perhaps, a tender would not be necessary. But it was not so in this case. There remains, after applying the proceeds of the sale, a considerable amount of the mortgage debt still unpaid; and before the defendant can be prosecuted in any form of action, whether for unfairly disposing of the property or otherwise, he must be paid or have tendered to him the balance due.

Were it not for such fact we might sustain this judgment by allowing an amendment, or by conforming the pleadings to the facts. But as there has not been any tender, and a part of the debt is yet unpaid, this action, so far as regards any of the property covered by the mortgage must entirely fail.

The right to recover the value of the property claimed not to have been included in the mortgage depends upon wholly different principles, which need not be alluded to here.

Stoddard agt. Denison.

I have no doubt that in an equitable action to redeem, after a tender of the sum remaining due, the court can give complete relief. Having acquired jurisdiction of the action for the purpose of redemption, if it shall appear that the defendant has wrongfully placed it beyond the power of the court to decree a redemption, it can in the same action make complete reparation to the plaintiff in damages. Such damages, of course, would be assessed under issues properly framed and sent to a jury to be tried. (Woodcock agt. Bennet, 1 Cow. R., 711; 2 Story Eq., §§ 794-799).

All right to redeem was taken away, if the sale by the defendant was a fair and justifiable sale. If it was not a fair sale, then the plaintiff has not lost the right of redemption, and the question of the fairness of the sale must be litigated in the action to redeem.

If the views I have expressed are correct the motion for a nonsuit, on the ground that the action should have been to redeem, should have been granted, so far, at least, as the property included in the mortgage was in controversy.

I think, therefore, there should be a new trial. Upon which new trial the case, as the pleadings now stand, will be confined to the property claimed not to be covered by the mortgage.

Judgment reversed, and a new trial ordered.

Granger agt. City of Syracuse.

COURT OF APPEALS.

AMOS P. GRANGER, appellant, agt. THE CITY OF SYRACUSE, respondents.

The opening and widening of a street in the city of Syracuse is not such an improvement as the common council are prohibited from making without the application or consent of the owners of the property upon the line of the improvement. Where it appears from the report of the commissioners appointed to assess the damages for the land proposed to be taken in such case, that they directly adjudicated upon the plaintiff's right to damages for the land proposed to be taken from him, and reported generally, except in three instances where they either named or described the owners, that as to the other property taken "the owners thereof are fully compensated for the benefits to the adjoining land owned by them respectively:" Held, that this award was warranted, in substance, by the statute under which the commissioners proceeded, as that empowered them to deduct the benefits from the damages, (Laws, 1857, chap. 136, § 2.) And it has been settled that the owner's right to compensation, which the constitution has secured, may be satisfied in that way. (Griffin agt. Mayor, &c., of Brooklyn, 4 Comst., 419.)

It was not necessary to the validity of the action of the commissioners that the plaintiff should be named in their report. All that was required was that it should appear that his right to compensation had been considered and adjudicated by the commissioners. The constitution requires only that the owner shall be justly compensated for this property when it may be taken for this purpose; and that can be done as well by describing or referring to him, as it can by naming him.

June Term, 1869.

APPEAL from a judgment of the general term in the fifth judicial district.

R. RAYNOR, for plaintiff, appellant.

SEDGWICK, ANDREWS & KENNEDY, for defendant, respondent.

DANIELS, J.-No substantial foundation appears to exist for the objection that the proceedings taken for the opening and widening of Clinton street, in the city of Syracuse, are void on account of the omission of the owners of the property upon the line of the street to petition for improve