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 incum brancers. Title of the Cause.1 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.1 And the plaintiff further shows that the said mortgage was duly recorded in the office of the clerk of Rensselaer county, on the day of 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 $5,000, which became due on the pay the sum of day of 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 hand 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. day of day of and there is now justly due the plaintiff, upon the said bond and mortgage, the sum of $5,000, with interest from the and that no proceedings have been had, at law or otherwise, for the recovery of the said sum secured by the said bond and mortgage, or any part thereof. And the plaintiff further shows, that he is informed and believes that the defendants, C. D., E. F., and G. H., have or claim to have some interest in, or lien upon, the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage. The plaintiff therefore demands that the defendants, and all persons claiming under them subsequent to the commencement of this action, may be barred and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises; that the said premises may be decreed to be sold according to law; that the moneys arising from the sale may be brought into court; that the plaintiff may be paid the amount due on the said bond and mortgage, with interest to the time of such payment, and the costs and expenses of this action, so far as the amount of such moneys properly applicable thereto will pay the same; and that the defendant, A. B., may be adjudged to pay any deficiency which may remain after applying all of said moneys so applicable thereto; and that the plaintiff may have such other or further relief, or both, in the premises as shall be just and equitable.. (No. 56.) For foreclosure of two mortgages on same premises, by assignee of mortgages, praying conditionally a judgment against assignor of first mortgage, on his covenant, that a specified amount was due at time of assignment. SUPREME COURT-COUNTY OF SULLIVAN. Reuben Hope George Hart and Harriet his wife, and Nathan J. Sherwood. The plaintiff complains of the defendants, and alleges: That one John Whitmore, then of the town of Wawarsing, in the county of Ulster and State of New-York, being indebted to Nathan J. Sherwood, then of the town of Bethel, in the county of Sullivan and State of NewYork, $1,400, for the purpose of securing the same, with interest thereon, did, on the 20th day of June, in the year 1825, execute and deliver to the said Nathan J. Sherwood his bond, sealed with his seal, whereby the said Whitmore bound himself and his heirs, executors and administrators, in the penalty of $2,800, upon condition that the same should be void if the said John Whitmore should pay to the said Nathan J. Sherwood the said sum of money first abovementioned, as follows, viz: [Setting forth the condition; and, as a collateral security for the payment of the said indebtedness, the said John Whitmore, and Ann his wife, on the same day executed, duly acknowledged and delivered to the said Nathan J. Sherwood a mortgage, whereby they granted, bargained and sold, in fee, to the said Nathan J. Sherwood, the following described premises, with the appurtenances, 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 Nathan J. Sherwood, his executors, administrators and assigns, were empowered to sell the said mortgaged premises in due form of law, and out of the moneys arising from said sale to pay the said sum of money and interest, with the costs and expenses of the proceedings thereupon, the surplus, if any, to be returned to the mortgagor or his assigns. That the said mortgage was duly recorded in the office of, &c., &c. That the said Nathan J. Sherwood, in the month of May or June, 1832, called on the said John Whitmore, then acting as the agent of the defendant, George Hart, who at the time was absent, for the payment of the amount then due on said bond and mortgage, and neither said Hart or said Whitmore being able to pay the amount then due on said hond and mortgage, the said Whitmore, as the then authorized agent of the said Hart, authorized some one to procure for the said Sherwood the amount then due, by an assignment of said bond and mortgage from said Sherwood; that the plaintiff agreed to advance the amount due and take an assignment of said bond and mortgage, and on the 15th day of June, 1832, it was admitted and agreed, by and between said Sherwood and the said John Whitmore, then acting as the agent of said George Hart, that the amount due on said bond and mortgage, on the day and year last aforesaid, was $954.51, and that the plaintiff, relying upon such admission and agreement between said Sherwood and said Whitmore, agreed to advance to said Sherwood said sum so admitted to be due, as aforesaid, and did actually advance the same on that day to said Sherwood. |