« ΠροηγούμενηΣυνέχεια »
entering into, or upon said street, called Broadway, for the purpose of laying or establishing a railroad therein, and from digging up or subverting the soil, or doing any other act in said street tending to incumber the same, or obstruct the free and common use thereof, as the same has been heretofore enjoyed, until the further order or direction of this Court in the premises.
And the plaintiffs further demand and pray, that by the judgment of this Court, such injunction may be made perpetual, and that they may have such other and further relief in the premises as the nature of the case may require, and as may be agreeable to equity and good conscience.
McMURRAY & HILTON,
( 5.) In CASES OF Fraud.
To set aside a judgment for foreclosure of mortgage frauiu
lently obtained, and for a redemption of the mortgaged premises.
Title of the Cause.
The abovenamed plaintiff, complaining of the alovenamed defendant, alleges the following facts constituting his cause of action :
That A. B., late of, &c., deceased, the plaintiff's late father, on or about the, &c., was seized in his own right, in fee simple, of in and to the following described premises : [Describing them.]
That, by indenture of that date, made between the said A. B. and the defendant, the said A. B., in consideration of the sum of $- - granted, bargained and sold to the said defendant, his executors, administrators and assigns, the said premises, subject to redemption, on payment of said principal money, and lawful interest, at the time therein mentioned, and long since past, as, by the said indenture, reference being thereto had, will more fully appear.
That, said A. B. departed this life on the, &c., leaving the plaintiff his sole surviving heir at law, then an infant of the age of twelve years.
That, during the plaintiff's minority, and on or about the, &c., the said defendant commenced his action in this Court, against the plaintiff, for a foreclosure of said mortgaged premises, but this plaintiff was not represented in the complaint in said action to be then an infant; and the defendant caused and procured one C. D., since deceased, who acted in the management of the affairs of plaintiff's father, to put in an answer to said complaint, in the name of this plaintiff, and without ever acquainting him, or any of his friends or relatives, therewith.
That, in said answer, a much greater sum was admitted to be due on said mortgage security than was in reality due; and that such proceedings were thereupon further had in said action, that by the collusion and fraud of said C. D. and said defendent, it was represented and shown to the Court that the sum mentioned in said answer was actually due on said mortgage, and a judgment of foreclosure obtained against this plaintiff, as by the record thereof will more fully appear, under which judgment the said premises were sold and purchased by said defendant, who is now in possession thereof.
That on the, &c., the plaintiff attained the age of twentyone years, and shortly afterwards, having discovered that such transactions had taken place during his minority, requested the said defendant to deliver up the possession of said mortgaged premises, on being paid the principal money, and interest, if any actually due on said mortgage, after deducting the rents and profits of said premises actually received, or which might have been received by the defendant, but that the defendant refused so to do, or to enter into any accounting with the plaintiff, of the amount due upon said mortgage, principal and interest, or of the value of the rents and profits of said premises, and insisted upon his right to hold the same under said foreclosure sale.
Wherefore the plaintiff demands the judgment of this Court, that said judgment of foreclosure may be set aside, and declared fraudulent and void, and that an account may be taken of what, if anything, is due to the defendant for principal and interest on said mortgage ; and that an account may be taken of the rents and profits of the said mortgaged premises which have or might have been received by the said defendant, or on his behalf; and if the same shall appear to be more than the principal and interest due on said mortgage, then that the defendant may be adjudged to pay the residue thereof to the plaintiff. And that the plaintiff may be at liberty to redeem the said mortgaged premises, on payment of the principal and interest, if any, remaining due on the said mortgage, and that the said defendant may be adjudged, on being paid such principal money and interest, to deliver to the plaintiff, or as he shall appoint, the possession of said mortgaged premises, free from all incumbrances, and to deliver up all title deeds and writings relative thereto, or for such further, &c., [as in No. 1.]
By the heirs of a deceased grantor, of weak understanding,
to vacate a deed of real estate obtained by undue influence and without sufficient consideration.
Title of the Cause.
The above named plaintiffs, complaining of the above named defendants, allege the following facts, constituting their cause of action :
That all the above named plaintiffs are the children and constitute all the heirs at law of A. B., late of, &c., deceased.
That said A. B. died on or about the day of — intestate.
That on or about the day of the said A. B. was seized and possessed of the following described lands and tenements, situate, &c. : (Describing them.]
That being so seized and possessed, the said A. B., on or about the day last mentioned, was induced and persuaded, as hereinafter set forth, to execute, acknowledge and deliver to the defendant a deed of a portion of said premises, to wit, a house and lot, situate, &c.: (Describing the premises.]
That said premises so conveyed, as plaintiffs are informed and believe, are worth the sum of $3,000.
That the consideration mentioned in said deed is the sum of $1,000, and that, as plaintiffs are further informed and believe, but a very inconsiderable part of such consideration was actually paid or rendered said A. B., that is to say, not more than $50 in money, in small sums from time to time, as his necessities might require, and the value of not exceeding $100 more in boarding the said A. B. for a period of about six months immediately preceding his death.
That said A. B., at the time of the execution of said conveyance, was about seventy-eight years of age.
That his mental faculties had become considerably impaired by reason of sickness and old age, and had been so for several years prior to his death, and to such a degree as to render him incapable of guarding himself from imposition, or of the prudent and proper management of his affairs.
That for more than ten years prior to the month of — last, the said A. B. resided in said house, so conveyed, with said A. D. B., his son, and one of the plaintiffs in this action, where he was suitably provided with everything necessary for his comfortable maintenance, and where he was treated with the utmost kindness and attention by said A. D. B. and the members of his family.
That in said month of — last, he left the house of said plaintiff, A. D. B., without assigning any cause therefor, and in opposition to the remonstrances and pursuasions of said A. D. B., and went to reside with the defendant, at his dwelling, about a mile distant from the residence of said A. D. B.
That, as plaintiffs are informed and believe, he was induced to do so by the persuasions of said defendant, made with the intention and design, as plaintiffs believe, of improperly obtaining from said A. B. a portion of his property.
That said A. B. continued to reside with said defendant from the time he left the residence of said A. D. B., up to the time of his death, and during that period never visited the said A. D. B. or any other member of the family, although he was frequently and kindly requested so to do, but seemed, on every occasion, when spoken to by them, to desire to shun all intercourse and conversation with any member of his family, and very rarely left the premises of the defendant.