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and there is now justly due the plaintiff, upon the said bond and mortgage, the sum of $5,000, with interest from the day of —, 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. .
For foreclosure of two mortgages on same premises, by as
signee 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.
agt. George Hart and Harriet his wife, and Na.
than 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 bond 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.
That the said Nathan J. Sherwood did, in pursuance of said agreement, by deed of assignment, bearing date the 15th day of June, 1832, duly executed under his hand and seal, and delivered to the said plaintiff, for and in consideration of $954.51, to him in hand paid by said plaintiff, duly assign said bond and mortgage to the said plaintiff, together with all money due, and to grow due thereon, and gave the plaintiff full power and authority to collect the same.
And the said Nathan J. Sherwood did, in and by said deed of assignment, covenant, promise, and agree, to and with the said plaintiff, that there was, on the 15th day of June, 1832, due and owing upon said bond and mortgage, the sum of $954.51, as by reference to said assignment will more fully and at large appear.
And the plaintiff further shows, that on the said 15th day of June, 1832, at the time the said Nathan J. Sherwood assigned said bond and mortgage to the plaintiff, the said John Whitmore, or some other person acting as the agent of said George Hart, was present, and admitted to the plaintiff that the sum of $954.51 was due on the said bond and mortgage, and saw the plaintiff pay that amount to said Nathan J. Sherwood as the consideration of said assignment, and that on that day the said Whitmore, as the agent of said Hart, paid the plaintiff the sum of $50, on account of the sum so due on the said bond and mortgage, as aforesaid, leaving, as a balance due on that day, the sum of $904.51. That the said George Hart and John Whitmore, or one of them, continued to pay to said plaintiff the interest on said last mentioned sum for a period of eleven years, and never questioned or intimated that a less sum was due at the time of such assignment.
That said sum of $904.51, as plaintiff is informed and believes, is due to the said plaintiff on said bond and mortgage, with interest thereon from the 20th day of June, 1843, except $60 of interest, which was paid on the 22d day of August, 1844, and $50 of interest, which was paid on the 10th day of May, 1848, and that no proceedings have been had at law, or otherwise, to recover said sum of money secured by said bond and mortgage, or any part thereof.
And the said plaintiff further shows, that the said George Hart claims and insists, and did, in the month of May last for the first time, claim and insist, that there was due on said bond and mortgage, at the time of the assignment thereof to the plaintiffs, only the sum of $654.51; but the plaintiff insists that the said George Hart is estopped by the acts and doings of himself and his agent from showing that there was a less sum than $954.51 due on said bond and mortgage at the time said Nathan J. Sherwood assigned said bond and mortgage to the said plaintiff, as aforesaid.
And the plaintiff claims, in case it shall appear that there was not due on said bond and mortgage, at the time it was assigned to the said plaintiff by said Nathan J. Sherwood, the said sum of $954.31, to recover of the said Nathan J. Sherwood, on his said covenant, the amount of such deficiency, if any there be, to wit, the sum of $200, with interest thereon from the said 15th day of June, 1832, to the present time, and demands judgment against him for such deficiency, with interest thereon from the 15th day of June, 1832.
And the plaintiff further shows, that the said John Whitmore, and Ann his wife, did grant and convey the said mortgaged premises, in fee, to the said George Hart,
· This is unnecessary, as it is merely the allegation of a conclusion of law. The “acts and doings" of the defendant, Hart, or his agent, which it is claimed estop him, are properly set forth in the complaint, and the legal conclusion is to be drawn by the court.