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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.,
( 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, 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,
| 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."
to secure the payment of $2,600, upon the whole farm of
That neither at the time of the execution of the said
That the mortgage was drawn by the son of the said defendant, who is an attorney at law; and the said mortgagors were induced, as these plaintiffs are informed and believe, to execute the said mortgage, upon the whole farm, upon the representations of the said defendant that it was right that it should be so drawn and executed.
That, as these plaintiffs are informed and believe, the defendant, Elias Dewey, knew, when he received the said mortgage, that these plaintiffs were the owners of the undivided half of the farm covered by the mortgage aforesaid.
That at the time of the execution of the said mortgage, these plaintiffs were both infants, under the age of twentyone years.
That the said Elias Dewey has commenced an action against the mortgagors for the foreclosure of said mortgage, to which the plaintiffs are not parties, and obtained judgment of foreclosure therein, which judgment, as these plaintiffs are informed and believe, is in the usual form, and contains a provision authorizing an execution for the deficiency over and above the amount of the sale of the property mortgaged.
That said defendant has caused notice of sale of said farm to be published in a newspaper, published in the county of Schoharie, and to be posted in several public places in said town of Jefferson, of which the following is, &c: [ Set forth copy or substance of notice.]
These plaintiffs further say, that the said mortgage and judgment of foreclosure, so far as they purport to cover the
one undivided half of the farm above mentioned, which now belongs to these plaintiffs, as the heirs at law of Samuel Ward, deceased, was without authority and unwarranted by law; that the said mortgage and judgment are now a cloud upon the title of these plaintiffs to the one undivided half of the farm aforesaid,' and a sale of the whole farm under the judgment aforesaid would be highly injurious to the title of these plaintiffs.
That, as these plaintiffs are informed and believe, the said defendant claims and pretends that the said mortgage is valid upon the whole farm, that the said mortgagors had power to execute the said mortgage as a valid, legal lien upon the whole farm, and upon the part thereof belonging to these plaintiffs, and that a sale under said mortgage will cut off all right and title of these plaintiffs, as heirs at law of said Samuel Ward, deceased.
That these plaintiffs have applied, in a friendly manner, to the said defendant, and requested him not to proceed and sell the half of the farm aforesaid, belonging to these plaintiffs, and that the said defendant has persisted in declaring his determination, in disregard of the protests of these plaintiffs, to proceed and sell the whole farm under the notice aforesaid.
The plaintiffs further show, that the said mortgagors claim no interest in the said farm adverse to the title of these plaintiffs to the one undivided half of said farm, and are willing that the title of these plaintiffs should be established to the said undivided half of the real estate of which Samuel Ward died seized.
And that the claim made by the said defendant, and the mortgage and judgment aforesaid, operate to the injury of
1 These allegations, it is conceived, are improperly in the complaint they being mere conclusions of law.