
    SUPREME COURT.
    James T. Foster agt. Jennie L. Hughes and others.
    
      New York, Special Term,
    
    
      November, 1874.
    
      Action to foreclose mortgage — equitable defense mt&rposed—stay of proceedings oi’dered on motion.
    
    A court of equity will not allow itself to be used fraudulently, and can prevent inequitable consequences even in the exercise of a legal right. Where it appeared that the real object of a foreclosure suit was not to procure satisfaction of the debt but to assist a husband to coerce his wife, who owned the fee, to settle litigations between him and her, the court will prevent its process being thus abused.
    In such a case, where the wife tendered to the mortgagee the amount of his debt—principal, interest and costs—and asked that the mortgagee assign the mortgage to some one designated by her, and the mortgagee refused, held, that proceedings in this action should be stayed.
    Motion on behalf of the defendant Jennie L. Hughes for a stay of proceedings. The suit was brought to foreclose a mortgage. The defendant Jennie L. Hughes was the owner of the fee. She was a married woman, and was suing her husband to annul her marriage, on the ground that he had another wife at the time he married her. There were also several other suits between them respecting property. She tendered the plaintiff, who, she swore, was a friend of her husband, the amount — principal and interest — due upon the mortgage, and offered to pay the costs of the suit, and requested an assignment of the mortgage to a friend to be named by her. The plaintiff refused to make any assignment. The affidavits showed that the mortgage was being foreclosed in the interest of the husband, and that, in consequence of the litigations, and the lis pendens in this and other suits, she could not obtain a new mortgage; and there was evidence tending to show that the object of this suit was to coerce Mrs. Hughes to settle her litigations with her husband.
    
      Richard S. Newcombe, attorney, and Albert Cardozo, of counsel, for motion.
    
      Charles Jones, attorney and counsel for plaintiff, in opposition.
   Donohue, J.

Courts of equity, or exercising equitable powers, will at all times prevent the improper use, even in a legal way, of their process, and have the power to prevent inequitable consequences of the assertion of even a legal right.

In this case it is clear to me that, while the denial of the plaintiff is made strongly, it is not true, but that, at the bottom, this mortgage is being used to obtain an end different from what is the right of the parties. On the payment of the plaintiff’s demand, with interest and costs, he will obtain all that the law or equity entitles him to, and there can be no excuse for him to refuse an assignment of the mortgage. Hpon making such tender to him, if he refuses to assign, his proceedings in this action are stayed.

Motion granted.  