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setting out in like manner the various different shares of the other defendants, ) are each seized, as tenants in common in their own right, in fee simple, of an equal, undivided one-eighth of one-quarter of said lands and premises, subject to the charge of the sum of $500 on the undivided shares of said Albert and Peter Slingerland, created by the said last will and testament of said Abraham Slingerland, deceased; and that said Abraham, the son of said Albert, is entitled to the said sum of $500, out of the proceeds of the said shares, on the sale thereof.

That, if there are any other rights or interests, either in fee or as tenant by the curtesy, in dower, or inchoate right of dower, or otherwise, in and to said undivided onequarter of said premises, belonging to the heirs of said Albert Slingerland, the same, and the names of the persons entitled to the same, are unknown to the plaintiffs ; but the plaintiffs believe there are none.

That the heirs and descendants of Peter Slingerland, now deceased, one of the devisees mentioned in said will, as far as the same have been ascertained by or are known to the plaintiffs, are his sons, Abraham Slingerland, &c., [giving names and places of residence, and then add ] but said plaintiffs do not know and cannot state more fully the names of the other heirs living of the said Peter Slingerland.

That the heirs of said Peter Slingerland, deceased, are collectively seized in their own right, in fee simple, under and by virtue of the provisions of the said will of Abraham Slingerland, as tenants in common, of the equal, un divided fourth part of said premises, subject to the payment of the said charge created by the said will of Abraham Slingerland; but the plaintiffs are unable to state, and do not know, the respective rights and titles of said heirs, as between themselves, nor the shares or quantity of interest in and to said premises to which they are severally entitled.

The plaintiffs further state, that Abraham J. Vanalstyne and David Burhans, the executors named in said last will and testament of said Abraham Slingerland,' have duly qualified as such executors, and taken upon themselves the burden of the execution of said will, as the plaintiff's are informed and believe ; but that they have not executed the power of sale contained in the codicil to said will, and decline to unite with the said plaintiffs, either in the partition or in the sale of said premises.

The plaintiffs further allege and state, that they do not know, and are therefore unable to state, further than as above set forth, the names or the respective shares or quantities of interest of any other person or persons having an interest in said estate, either as heirs, or tenants for years, for life, by the curtesy, or in dower or otherwise, or having an inchoate right of dower, or entitled to the reversion, remainder or inheritance after the termination of any particular estate therein, or who may in any manner become entitled to any beneficial interest in said premises and real estate ; except that Margaret Dollar, one of the defendants, has an interest in said real estate to the amount of $200, which is made a charge on the shares of the plaintiffs by the provisions of said will of Sarah Fox. The plaintiffs further state, that the aforesaid premises and real estate are the only premises owned in common by the plaintiffs and the said heirs and owners unknown. And there are no other specific

· The executors are made parties defendants to the action by reason of the devise to them in trust, with power to sell the one-half the real estate after the death of the widow of the testator, Abraham Slingerland.

liens or incumbrances upon the said real estate, against any of the parties to this suit, to the knowledge or belief of the plaintiffs. That the said plaintiffs are desirous of a sale of said real estate, and that the moneys arising therefrom be divided among the owners thereof, or, that a fair and just partition and division of said property may be made, assigning to the said plaintiffs, John V. and Ralph B. Fox, in common, the shares to which they are entitled, as aforesaid, to wit, the equal, undivided half of said premises, and assigning and setting off to the said heirs of Peter Slingerland and Albert Slingerland the other equal, undivided half thereof, or making such further partition between said heirs as to this court shall seem meet and proper, according to the provisions of the statute. Wherefore the plaintiffs demand the judgment of this court, that the respective shares and quantities of interest of the plaintiffs in and to said premises, and the other owners hereinbefore named and owners unknown, may be ascertained and settled, as far as practicable, and that a fair and just partition and division thereof may be made between the plaintiffs and all other persons who shall appear to be owners of, or interested therein, according to the rights and interests of the parties therein ; assigning to said plaintiffs, John V. and Ralph B. Fox, in common, the shares to which they are entitled, as aforesaid, and to the heirs of said Peter Slingerland and Albert Slingerland, either in common or in severalty, as to the court shall seem proper, the shares to which they are entitled as aforesaid, pursuant to the statute in such case made and provided, and the rules and practice of this court; or in case a partition thereof, or of any part thereof, or a division, as aforesaid, cannot be made without great

1

By statute. (Session Laws of 1847, chap. 430.)

prejudice to the owners, then, that the same may be sold by or under the direction of this court, and that the proceeds of the sale, after the payment of such costs and charges as may be adjudged by the court to be paid out of such proceeds, may be divided among the owners thereof, according to their several rights and interests therein, as far as the same may be ascertained or known, or otherwise invested or disposed of, according to the order of this court.

G. V. S.

Plaintiffs' Attorney.

(11.) IN MORTGAGE CASES.

(No. 55.)

For foreclosure of mortgage by mortgagee (or assignee of

mortgage) against mortgagor and subsequent incumbrancers.

Title of the Cause.

The complaint of the abovenamed plaintiff shows to this court, upon information and belief, that the defendant A. B., for the purpose of securing the payment to the plaintiff of the sum of $5,000, with interest thereon, on or about the, &c., executed and delivered to the plaintiff a bond bearing date on that day, sealed with his seal, in the penalty of $10,000, upon condition that the same should be void if the said defendant should pay to the said

1 All persons, having a lien upon or interest in the premises subsequent to the lien of the mortgage, are made parties defendants. ( Pleadings, 180, 181.)

plaintiff the said sum of money first abovementioned, as follows: [Setting forth the condition of the bond, ] and, as collateral security for the payment of the said indebtedness, the said defendant A. B., and the defendant C. D., his wife, on the same day executed, duly acknowledged and delivered to the said plaintiff a mortgage, whereby they granted, bargained and sold to the said plaintiff the following described premises, with the appurtenances thereto, that is to say, [describing the premises, ] with the same condition as the said bond; and in case of default in the payment of the said sum of money, or any part thereof, the said plaintiff was empowered to sell the said mortgaged premises in due form of law, and out of the moneys arising from the sale to pay the said sum of money and interest, with the costs and expenses of the proceedings thereupon, the surplus to be returned to the mortgagor.

And the plaintiff further shows that the said mortgage was duly recorded in the office of the clerk of Rensselaer county, on the

And the said plaintiff further shows, that the said defendant has failed to comply with the condition of the said bond and mortgage by omitting to pay the sum of $5,000, which became due on the day of

day of

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1 If the mortgage has been assigned, and the action is brought by the assignee, the assignment, &c., should be here inserted as follows:

“And the plaintiff alleges that said mortgagee, A. B. P., on or about day of by an instrument under his band and seal, for a valuable consideration therein expressed, did duly assign, transfer and set over to the plaintiff the said bond and mortgage, and the moneys due thereon and secured thereby, and delivered said bond and mortgage to said plaintiff, which assignment was duly recorded in the office of the clerk of Rensselaer county, on the in book, &c., &c.

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