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one of the defendants, by deed bearing date June 20th 1825, and recorded in the office of the clerk of said county.
Second. And, for a further cause of action, the plaintiff alleges, that the said George Hart, being indebted to one John S. Crane in the sum of $342.30, for the purpose of securing the payment of the same, with interest, on the 10th day of April, 1847, executed and delivered to the said John S. Crane his bond, sealed with his seal, whereby he bound himself, his heirs, executors, administrators and assigns, in the penalty of $684.60, upon condition that the same would be void if the said George Hart should pay to the said John S. Crane the said sum of $342.30, with lawful interest, in one year from the date thereof; and as a collateral security for said last mentioned indebtedness, the said George Hart, and Harriet his wife, on the same day, executed, duly acknowledged and delivered to the said John S. Crane their mortgage, whereby they granted, bargained and sold to the said John S. Crane the above described premises, with the appurtenances thereunto, with the same condition as the said last mentioned bond; and in case of default in the payment of the said last mentioned sum of money, or any part thereof, the said John S. Crane or his assigns were empowered to sell the said mortgaged premises in due form of law, and out of the moneys arising from the sale to pay the last mentioned sum of money and interest, with costs and expenses of the proceedings thereupon, the surplus to be returned to the mortgagor.
That the said mortgage was duly recorded in the office, &c., &c.
That the said John S. Crane did, by deed of assignment bearing date the 22d day of May, 1848, duly executed under his hand and seal and delivered to the plaintiff
, for and in consideration of the sum of $369.04, to him (said Crane) paid by the said plaintiff, duly assign said last mentioned bond and mortgage to the said plaintiff, together with all money due and to grow due thereon, and gave the plaintiff full power to collect the same.
That no part of the money secured by said last mentioned bond and mortgage has been paid to the said John S. Crane or to the said plaintiff
, or any one in his behalf, by the said George Hart; that the said last mentioned mortgage is a lien on said premises above described, but is subsequent in point of time to the lien of the mortgage first above described and referred to, and that the said sum of $342.30, with lawful interest thereon from the 10th day of April, A. D. 1847, remains unpaid, and that no proceedings have been had at law or otherwise for the recovery of the said sum of money secured by the said last mentioned bond and mortgage, or any part thereof.
The plaintiff therefore demands that the defendants, and all persons claiming under them or any or either of them subsequent to the commencement of this suit, 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 adjudged 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 and to become due on the said bonds and mortgages, with interest to the time of such payment, and the costs and expenses of this suit, so far as the amount of such moneys properly applicable thereto will pay the same; and that the defendant, George Hart, may be adjudged to pay any deficiency which may remain after applying all of said moneys so applicable thereto; and in case it shall appear to this court that there was not due on said first mentioned bond and
This allegation is also a mere legal conclusion, and is not properly in the complaint.
mortgage, on the 15th day of June, 1832, the sum of $954.51, then that the said Nathan J. Sherwood may be decreed to pay the difference between that sum and the amount actually due on the day and year last aforesaid, with lawful interest on the same from that day to the time of payment, and that the plaintiff may have such other or further relief, or both, in the premises as shall be just and equitable.
LEE & VAN WYCK,
To foreclose a mortgage, alleging a prior mortgage held by
two defendants to be fraudulent and void, and setting up a covenant by another defendant, that the lien of another prior mortgage and judgment should be subsequent to the lien of plaintiff's mortgage.
SUPREME COURT - ALBANY COUNTY.
The New York Life Ineurance and Trust
agt. Barent P. Staats, and Caroline his wife, The
Albany City Bank, William White and John Taylor, commissioners for loaning certain moneys of the United States, Albert D. Robinson, &c., (and various other defendants, naming them.]
The complaint of the abovenamed plaintiffs, a corporation created under and by virtue of an act of the legislature of the State of New-York, entitled "An act to incorporate the New-York Life Insurance and Trust Company,” passed March 9th, 1830, respectfully showeth to this court that the defendant, Barent P. Staats, of the city of Albany, being indebted to the plaintiffs in the sum of, &c., &c. [stating execution of bond and mortgage, description of premises, recording of mortgages, fc., as in No. 55], 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 plaintiffs were 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 said plaintiffs further show that by a certain instrument under seal, made between the defendant, The Albany City Bank, and these plaintiffs, bearing date the 19th day of July, 1850, under the seal of The Albany City Bank, after reciting that whereas Barent P. Staats, of the city of Albany, and Caroline L., his wife, executed a certain mortgage to The Albany City Bank, bearing date the 30th day of November, 1842, on certain premises in the city of Albany, which was duly recorded in the office of the clerk of Albany county on the 7th day of December, 1842, in book 51 of mortgages, page 131, and for $15,000, on demand, with interest in the manner specified in the bond of said Staats to said bank, bearing even date with said mortgage; and further reciting that whereas The Albany City Bank held a judgment against the said Barent P. Staats, in the Supreme Court of the State of New-York, docketed in the Albany county clerk's office on the 30th day of August, 1849, for $14,255.55 damages and costs, and after reciting that whereas the said Barent P. Staats and wife had executed a mortgage to The New-York Life Insurance and Trust Company, bearing date the 10th day of July, 1850, to secure the
payment of $7,000, in three years from the date thereof, with interest, according to the condition of the bond of said Staats to said New-York Life Insurance and Trust Company, bearing even date with the last mentioned mortgage upon certain premises in the city of Albany, described as in said mortgage above set forth, and which said premises were subject to the lien of said judgment, and were part and parcel of the premises embraced in the mortgage of said Staats and wife to The Albany City Bank, first abovementioned.
Then, therefore, that agreement witnessed that for and in consideration of one dollar, to The Albany City Bank in hand paid, the said Albany City Bank thereby covenanted and agreed, to and with the said The New York Life Insurance and Trust Company, its successors and assigns, and to and with the said Barent P. Staats, and Caroline L., his wife, their executors, administrators and assigns, that the said mortgage, executed by the said Barent P. Staats and wife to the said New-York Life Insurance and Trust Company for $7,000, as aforesaid, should constitute and be a prior lien, on the said premises therein described, to that of the mortgage to said bank, abovementioned, and should also be a prior lien, on said premises, to that of said judgment in favor of said bank, abovementioned; the said mortgage to said bank, and the said judgment, , to be and remain thereafter a lien and incumbrance on said premises, subsequent and subject to the lien and incumbrance of the mortgage by the said Barent P. Staats and wife to The New-York Life Insurance and Trust Company, as aforesaid, as by the said instrument, duly executed and acknowledged by the Albany City Bank, or a duly certified copy thereof, now in plaintiff's possession and ready to be produced to this court, or by the record thereof, will appear.