House v. . Carr
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 27, 1905, affirming a judgment in favor of plaintiffs entered upon the report of a referee. This action was commenced on the 23d of June, 1903, to restrain the foreclosure of a mortgage by advertisement under the statute.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 27, 1905, affirming a judgment in favor of plaintiffs entered upon the report of a referee. This action was commenced on the 23d of June, 1903, to restrain the foreclosure of a mortgage by advertisement under the statute. The mortgage, collateral to a bond of even date, was given by,Alonzo House to Cynthia Gilbert on the 13th of October, 1870, to secure the payment of a debt which he owed her, then amounting to the sum of $400, within four years from date. The mortgagor owned…
1DissentVann, J.
It is insisted that the judgment appealed from should not stand because a court of equity will not grant affirmative relief founded only on the Statute, of Limitations, nor restrain the foreclosure of a mortgage for any reason without actual payment or an offer to pay the debt secured thereby.
It is a general principle that the Statute of "Limitations may be used as a shield but not as a sword. The party attacked may use it to defend himself, but he cannot use it for aggressive action or. as the means of getting property from the other party. Courts of equity, under ordinary circumstances, do…
2Cases cited7 opinions
- People v. . HarrisNew York Court of Appeals · 1893
- Butler v. . JohnsonNew York Court of Appeals · 1888
- Mellen v. . MellenNew York Court of Appeals · 1893
- Johnson v. . Albany Susquehanna R.R. Co.New York Court of Appeals · 1873
- Tuthill v. . TracyNew York Court of Appeals · 1865
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