(No. 20.)

To restrain foreclosure sale, and to declare mortgage, under which defendant is proceeding, not a lien on the premises, and null and void.

SUPREME COURT-RENSSELAER COUNTY.

Michael Warner and Hiram Drum

agt.

William A. Tweed Dale.

The plaintiffs complain of the defendant, and allege the following facts, constituting their cause of action: That, on and before the 19th day of January, 1850, one Asa B. Neligar was the owner, and in possession, of a certain lot or piece of land, situate in the village of Bath, county of Rensselaer, and bounded and described as follows, to wit: [Insert description of premises.]

That by virtue of two writs of fieri facias, issued out of, and under the seal of, the Rensselaer county court, one in favor of John Foyle, against the said Asa B. Neligar, on a judgment for $29.39, damages and costs, duly given or made1 by Henry Goodrich, a justice of the peace, of Rensselaer county, and docketed, in the clerk's office of said county, April 8th, 1847; and one in favor of Michael Warner, against said Neligar, on a judgment duly given or made by L. Cornell, a justice of the peace, of Albany county, on the 15th February, 1848, for $34.46, damages and costs, and docketed in said county of Albany, and a

This allegation is sufficient, by the Code, in pleading a judgment of a court of limited jurisdiction. (Code, § 162; Pleadings, p. 271.) But the judgment must be pleaded, in the language of the Code, as having been "duly given or made." (Hunt v. Dutcher, 13 How., 539.)

duly certified transcript thereof, subsequently filed and docketed in said county of Rensselaer, to wit, on the 21st February, 1848, which said writs of fieri facias were directed and delivered to the said sheriff of Rensselaer county, commanding him that, of the goods and chattels of said Asa B. Neligar, in his county, he should cause to be made certain moneys in the said writs specified; and if sufficient goods and chattels could not be found, then that he should cause the amount of such judgments to be made of the lands, tenements, real estate and chattels real, whereof the said Neligar was seized at a certain time in the said writs mentioned, to wit, the time of docketing said transcripts in said county of Rensselaer, or at any time thereafter.

That the said sheriff, not finding sufficient goods and chattels to satisfy said judgments, or either of them, did, in obedience to the command of said writs, levy on all the estate, right, title and interest of the said Neligar, of, in and to the premises above described, he, the said Neligar, being then the owner and in possession thereof.

That such proceedings were thereupon had, that afterwards, to wit, on the 19th day of January, 1850, the said sheriff did sell the said premises at public vendue, at the public house of Simeon Lodewick, in the town of Greenbush, in said county of Rensselaer, he having first given due public notice of the time and place of sale, by advertising the same according to law; and that at such sale the said premises were struck off to the plaintiffs, Michael Warner and Hiram Drum, for the sum of eighty-four dollars, they being the highest bidders, and that being the highest sum bid for the same. Whereupon, the said sheriff, after receiving from the said purchasers the amount of the purchase money so bid, gave to each of them his certificate of sale, as enacted and required by law to be

given; and a duplicate of said certificate of sale was duly filed by said sheriff with the clerk of said county of Rensselaer, on the 25th day of January, 1850, as plaintiff's are informed and believe.

That after the expiration of fifteen months from such sale, and the giving and filing of such certificates, no redemption of said premises having been made, the said sheriff, Gilbert Cropsey, Esq., executed and delivered to the plaintiffs a conveyance and deed of the said premises, as authorized and directed by statute. And the said plaintiffs thereupon became, and have ever since continued to be, the owners of the said premises.

That subsequent to said sale, and the making and filing of said certificates, the said Asa B. Neligar, as the plaintiffs are informed and believe, did, on the 21st day of April, 1851, make, execute and deliver to the defendant, William A. Tweed Dale, a mortgage on the same premises above described, so sold and conveyed to the said plaintiffs, and that default having been made in the payment of the said mortgage, the said defendant is now proceeding to foreclose the same and sell the said premises under said mortgage, and has caused notice of sale of said premises to be published in the Troy Daily Times, a newspaper published in the city of Troy, in said county of Rensselaer, which notice, signed by the defendant, the mortgagee in said mortgage, describes said mortgaged premises, and advertises the same for sale on the 21st day of September, instant, at the Court-house in the city of Troy, pursuant to the statute regulating foreclosure sales by advertisement; and, as the plaintiffs are informed and believe, the said defendant intends to proceed on said notice, and sell said premises under his said mortgage. Wherefore the plaintiffs demand the judgment of this court, that the said mortgage be adjudged null and void,

and not a lien upon said premises, and that it be set aside and canceled of record, as a cloud upon the plaintiffs' title to said premises, and that the said defendant, and all persons claiming under him, be barred of all right, title, claim, interest or demand whatever, in and to said premises, or any part thereof, under or by virtue of said mortgage, as against the said plaintiffs, or any person or persons claiming or deriving title hereafter through them, or either of them, and that said defendant may be perpetually restrained and enjoined from proceeding, under said mortgage, to foreclose, or sell or take possession of said premises, or any part thereof, and that, in the mean time, a temporary injunction may be allowed, restraining the defendant, his agents and attorneys, from proceeding in the sale or foreclosure of said premises until the further order of the court, or for such other or further relief as, to the court, may seem just, with costs of action.

S. & V. S.,

Plaintiff's Attorneys.

(No. 21.)

To quiet and establish the title to an equal undivided half of real estate, and to remove a cloud upon such title, and praying an injunction to restrain a foreclosure sale.

SUPREME COURT-SCHOHARIE COUNTY.

Cornelius S. Ward, and Joel Ward

agt.

Elias Dewey.

The complaint of the above plaintiffs, shows to this court, that on or about the 11th day of March, in the

year 1837, Samuel Ward died at Jefferson, Schoharie county, seized in fee of a farm of land, containing one hundred and eighty acres and one-half of land, being the same land described in the notice of mortgage sale, hereinafter mentioned.

That the said Samuel Ward left Eleanor Ward his widow, and these plaintiffs, Cornelius S. Ward and Joel Ward, together with Chapman S. Ward and Polly Ward, his only children and heirs at law.

That said Samuel Ward executed his last will and testament in due form of law, a copy of which is hereto annexed,1 to which the plaintiffs pray leave to refer, as forming part of this complaint.

That on or about the 26th day of June, in the year 1837, the said will was admitted to probate, before the surrogate of the county of Schoharie, and letters testamentary thereon were duly granted to the said Eleanor Ward.

That the said Eleanor Ward has never caused any part of the real estate, of which Samuel Ward died seized, to be admeasured and set apart for her dower.

That prior to the 3d day of May, 1850, and after the death of Samuel Ward, the precise time being unknown to these plaintiffs, Polly Ward conveyed all her interest in the real estate of Samuel Ward, deceased, to Chapman S. Ward.

That on the 3d day of May, 1850, Eleanor Ward and Chapman S. Ward were in the sole and exclusive occupation of the real estate aforesaid, and, on that day, executed and delivered to the defendant, Elias Dewey, a mortgage,

1 The will directs that there shall be no division of testator's real estate until his youngest son becomes of age, and then "to be divided according to law."