A bill in equity by an attaching creditor, praying for the discharge of a mortgage on the premises attached and containing no allegation of fraud or collusion, states no case against a purchaser of the mortgagor's interest subsequent to the attachment. An attachment of a mortgagor's interest in real estate and a refusal of the mortgagee to release upon tender of the sum due him, do not furnish sufficient grounds for the maintenance, by the attaching creditor, of a bill in equity for the discharge of the mortgage. When a tender of money is relied on, it must be brought into court.
BLODGETT, J.
The bill states no case against Baker. No collusion between him and the mortgagee or the mortgagor is charged, nor is his purchase of the mortgagor's interest in the real estate attached by the plaintiffs alleged to be fraudulent or cloud upon the title. The simple fact that Baker bought the mortgagor's equity subsequent to the attachment, without any other ground for equitable aid, is wholly insufficient to maintain the plaintiffs' bill. See Towle v. Janvrin, 61 N.H. 605.
No better is the case made against Hazelton. No grievance or injury impairing or imperiling the plaintiffs' security is set forth; no fraud is charged; and absolutely nothing is alleged which shows or tends to show any present existing ground for equitable interference with the mortgage which the plaintiffs pray to have discharged. The bill rests exclusively upon the attachment and subsequent tender. But if the tender was a valid one, Hazelton's rights as mortgagee ceased at once, as against the attachment and the rights acquired under it, by virtue of P. S., c. 220, s. 8; and if the tender was not valid, no ground for equitable aid is claimed or suggested. At most, there can therefore be no occasion to invoke the aid of a court, of equity in respect of the mortgage until the plaintiffs' attachment ripens into a judgment, and is followed by a levy upon the mortgaged premises, both of which are contingencies that may never happen. If the court has jurisdiction of questions that may never arise, it is not advisable to decide them in advance.
Then, again, the record shows that the tender has not been brought into court, which is an indispensable requisite when a tender is relied upon. Bailey v. Metcalf, 6 N.H. 156; Frost v. Flanders, 37 N.H. 549, 552; Allen v. Cheever, 61 N.H. 32.
Other objections need not be considered.
Demurrers sustained.
CLARK J., did not sit: the others concurred.