Welles v. River Raisin & Grand R. R. Co. leave them to their remedy, if any, at law. Such must be the decision in this case. To give relief under the facts and circumstances stated in the bill, would, it seems to me, be a perversion of justice, and an encouragement to bankers to commit frauds upon the public, through the improper management of the moneyed institutions under their control. In Bolt v. Rogers, 3 Paige R., 157, Chancellor Walworth says: "Wherever two or more persons are engaged in a fraudulent transaction to injure another, neither law nor equity will interfere to relieve either of those persons, as against the other, from the consequences of their own misconduct." The bill cannot be sustained as a bill of discovery merely. When a bill is filed for relief, the discovery is ancillary, and a demurrer that is good to the relief is also good to the discovery. The rule is well established in England, that, if the complainant is entitled to discovery only, and the bill goes on to pray relief in addition to the discovery, the whole bill may be demurred to. Coop. Eq. Pl., 188; 3 Ves. R., 7; 10 id., 553. The rule is otherwise in the State of New York. The English rule, however, I think preferable, as it keeps up a proper distinction between bills for relief and bills for a discovery only. The Court *should not be required to examine [*41] the complainant's case twice over; first, to ascertain whether he is entitled to relief; and, if not, then to see whether the bill can be retained as a bill for a discovery only. But again. Would this Court aid a party at law, to whom it had expressly refused to give relief in this Court, not for want of jurisdiction, but on account of the illegality of the transaction? There can be but one answer given to such a question. Demurrer allowed, and bill dismissed with costs. Stevens v. Brown. STEVENS v. BROWN. The legal title to lands mortgaged is in the mortgagee, who may, at any time after default, if not before, unless the mortgage provides that the mortgagor shall retain possession, put him out by ejectment.1 When the mortgagor comes with his money to redeem, the mortgagee must account for the profits of the mortgaged premises, of which the crops which he may have appropriated or destroyed, will be considered a part. THIS was a motion to dissolve an injunction. The bill states that the complainant, in 1839, mortgaged certain premises to the defendant, who, after the mortgage money became due, foreclosed the mortgage at law, and, on May 14th, 1841, obtained a deed. That the statutory foreclosure was irregular and void, but that the defendant, by virtue of the deed, had entered upon the land, and commenced ploughing it, and had destroyed the complainant's crops growing upon it; and that the complainant was ready and willing to pay what was due on the mortgage. [*42] *An injunction had been allowed, restraining the defendant from exercising further acts of ownership over the land, which injunction the defendant now moved to dissolve. S. Barstow & A. H. Hanscom, in support of the motion. A. Davidson, contra. THE CHANCELLOR. In disposing of this motion, it is not necessary to inquire into the validity of the statutory foreclosure. Considering the defendant in the light of a mortgagee, this Court will not prevent him from taking possession of the mortgaged premises. The legal title to lands mortgaged is in the mortgagee, who may at any time after a default in the payment 1See note 1 on next page; Mundy v. Monroe, 1 Mich., 68; Hoffman v. Harrington, 33 id, 392; Dougherty v. Randell, 3 id., 581; Albright v. Cobb, 34 id., 316. Brown v. Chase. of the mortgage money or any part thereof, if not before, where the mortgage does not provide for the mortgagor's retaining possession until that time, put the mortgagor out of possession by ejectment.' 4 Kent's Com. 155, and cases there cited. At law, the defendant has a right to the possession of the mort. gaged premises, and equity will not take from him that right. It is sufficient that the mortgagee must account for the profits of the mortgaged premises, when the mortgagor comes with his money to redeem; and if he appropriates to his own use, or destroys the crops growing on the premises when he takes possession, he must account for them as a part of the profits. Injunction dissolved. *LEVI BROWN et al. v. THOMAS CHASE et al. [*43] Before appointing a receiver to take charge of mortgaged premises, in a suit for the foreclosure of a mortgage, the Court must be satisfied, first, that the premises are insufficient to pay the debt; and, second, that the party personally liable is insolvent, so that an execution for the balance due after sale would be unavailing. A security is presumed sufficient, until the contrary is shown. A neglect to apply for a receiver within a reasonable time, is construed into a waiver of the right to make such application. 1 Subsequent to this decision, on March 8th, 1843, it was enacted by the Legislature of this State, "That no action of ejectment shall hereafter be maintained by a mortgagee, or his assigns or representatives, for the recovery of the mortgaged premises, until after a foreclosure of the mortgage, and the time of redemption thereof shall have expired." Laws 1843, p. 139. (Comp. Laws, § 6263). This statute has been held unconstitutional as to mortgages previously executed: Mundy r. Monroe, 1 Mich., 68; Blackwood v. Van Vleet, 11 id., 252; Newton v. McKay, 30 id., 380. As to the effect of this statute, see Baker v. Pierson, 5 Mich., 456; Caruthers r. Humphrey, 12 id., 270; Crippen v. Morrison, 13 id., 23; Newton v. Sly, 15 id., 91; Hogsett v. Ellis, 17 id., 351; Newton v. McKay, 30 id., 380; Humphrey v. Hurd, 29 id., 44. Brown v. Chase. THIS was a petition for the appointment of a receiver of the rents and profits of mortgaged premises. The complainants filed their bill to foreclose a mortgage August 13th, 1839. Davis, one of the defendants, put in his answer April 3d, 1841, admitting the rights of complainants, and the amount due on the mortgage, and the bill was taken as confessed against the other defendants. The amount due May 10th, 1841, for principal and interest, was $16,465.87. The petition stated that Chase, the mortgagor, had been decreed a bankrupt under the act of Congress, and that the mortgaged premises, with the appurtenances, were a slender and scanty security for the amount due on the mortgage. To show the value of the premises, numerous affidavits were read. E. B. Harrington, for petitioners. Wm. Hale & H. N. Walker, contra. THE CHANCELLOR. A receiver of the rents and profits of mortgaged premises is sometimes appointed on the peti[*44] tion of the mortgagee, after he has filed his bill to *foreclose the mortgage. The Court must be satisfied, before making the appointment, that the mortgaged premises are insufficient to pay the mortgage debt, and that the mortgagor, or other party to the suit who is personally liable for its payment, is insolvent, or out of the jurisdiction of the Court, so that an execution against him for the balance that should remain due after a sale of the mortgaged premises, would be unavailing. Chase, the mortgagor, who is personally liable for the payment of the debt, has been decreed a bankrupt on his own petition. So far the complainants have made out their case; but they have failed to satisfy the Court that the mortgaged premises are insufficient to pay the mortgage debt. The security was one of their own taking, and the presumption is that it is sufficient, until the contrary appears. To sustain their application, they have produced the affidavits of fifteen different persons to the value of the mortgaged premises. The sev Ward v. Jewett. eral valuations of these individuals range from $14,500, to $18,000. On the other hand, the defendants have produced the affidavits of sixteen or more individuals, whose several valuations range from $22,000, to $30,000. A majority of the persons last mentioned, value the premises at $25,000 or more. The Court cannot say, under such circumstances, that the mortgaged premises are insufficient security. The complainants have come too late with this motion. They filed their bill August 13th, 1839, nearly three years ago, and, for aught that appears from their petition, might, with due diligence, have obtained a decree long before this time, and had the mortgaged premises sold. If they were entitled to a receiver, their neglect to apply for his appointment at an earlier day, should be construed as a waiver of their right. Motion denied. *GEORGE WARD v. SAMUEL P. JEWETT. [*45] Where a defendant permits a bill to be taken as confessed against him, it is an admission on his part of every material fact stated in it.1 If the defendant wishes to controvert any allegations in the bill, he should put them in issue by plea or answer, and neglecting this, he is precluded from introducing evidence for that purpose before the Master, on a refer ence. Where a Master erroneously refuses to receive testimony, the proper way to correct it is by motion to the Court for an order compelling him to receive the evidence, and not by excepting to his report.2 If the allegations in a bill are sufficiently clear and positive to establish a fact without proof, it need not de adduced; otherwise, where they are vague and indefinite. Where complainant was compelled by the improper conduct of the defendant, and without fault of his own, to come into Court for a settlement of partnership accounts, he was held entitled to costs. 1 And defendant cannot, in such case, be charged with costs of testimony in support of the bill. Covell v. Cole, 16 Mich., 223. * See Schwarz v. Sears. ante, 19 and note. |