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And the said plaintiffs further show, that the said instrument was duly recorded in the office of the clerk of the city and county of Albany on the 3d day of August, 1850.
And the said plaintiffs further show, that the said defendant, Barent P. Staats, has failed to comply with the condition of the said bond and mortgage, by omitting to pay the sum of $7,000 of principal, which became due on the 1st day of July, 1853, and there is now justly due to the plaintiff, upon the said bond and mortgage, the sum of $7,000 of principal, with interest, at the rate of seven per cent. per annum, from the 1st day of December, 1852; and the said plaintiffs further show, 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 said plaintiffs further say, that The Albany City Bank, William White and John Taylor, the commissioners for loaning certain moneys of the United States, of the county of Albany, &c., &c., [stating names of all incumbrancers who are defendants, ] 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.
That the interest, claim or lien of the said William White and John Taylor, commissioners, as aforesaid, if any they have, arises from a certain paper or instrument, purporting to be a mortgate, bearing date the 10th day of November, 1846, executed by the defendant, Barent P. Staats, to the commissioners for loaning certain moneys of the United States," of the county of Albany, and purporting to be given to secure the sum of $5,000, with interest, as in the said mortgage mentioned, on the premises herein above described, or some part thereof, and which pretended mortgage, as they have been informed and believe, is in the book of the said commissioners, among the mortgages of the year 1847, and which said pretended mortgage is now held by the said William White and John Taylor, commissioners, as aforesaid, as the successors in office of the commissioners to whom the same was originally given, as aforesaid.
And these plaintiffs further say, that they are informed and believe, that the pretended mortgage was not given by the said Barent P. Staats to secure any sum of money borrowed from the said mortgagees therein mentioned, and that it was not given at the time it bears date, but that it was given at some other time, and to secure some other indebtedness, and was given contrary to the form and effect of the statute in such cases made and provided, but for what indebtedness, and at what time, and under what circumstances, these complainants are unable to state, and they aver that they had no notice of the said mortgage, and charge that the same is fraudulent and void, and of no effect against the plaintiffs.
The plaintiffs, therefore, demand that the mortgage and judgment of the defendant, The Albany City Bank, hereinbefore mentioned, be declared a subsequent lien to the mortgage of the plaintiff, and that the said mortgage hereinbefore mentioned, executed by the defendant, Staats, to the commissioners for loaning certain moneys of the United States, be adjudged fraudulent and void, and be canceled of record.
That the defendants, and all persons claiming under them, or any 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 decreed to be sold according to law, and that out of the proceeds thereof they, the plaintiffs, 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 suit, so far as the amount of such moneys properly applicable thereto will pay the same; and that the said defendant, Barent P. Staats, may be adjudged to pay any deficiency which may remain, after applying all of said moneys so applicable thereto, and that they, the said plaintiffs, may have such other or further relief, or both, in the premises as shall be just and equitable.
By a plaintiff who had taken, on the sale of real estate, a
note of an insolvent third person (believing it good), instead of a bond and mortgage, to which he was entitled, which bond and nortgage were executed to the maker of the note, by the fraudulent or collusive acts of such maker and mortgagor; praying the assignment to plaintiff of the bond and mortgage for foreclosure ; or to be canceled, and mortgagor adjudged to pay the amount due the plaintiff
SUPREME COURT - DUTCHESS COUNTY.
Platt Vail and Hiram Vail
agt. Abraham Flagler, Tilley Morgan and Ben
jamin S. Thorn.'
The plaintiffs complain of the defendants, and allege the following facts constituting their cause of action :
That on or about the 22d day of February, 1840, the plaintiffs, as executors of the last will and testament of Samuel Van Cott, deceased, under and by virtue of said will, sold certain lands and premises, part and parcel of said estate, lying in the town of Stanford, in said county of Dutchess, which land and premises so sold are bounded and described as follows, viz: [ Describing premises.]
1 This complaint is altered and adapted from a bill filed in the late Court of Chancery. The Vice-Chancellor having dismissed the bill, the complainants appealed, and the General Term of the second judicial district reversed the decision, and decreed that the bond and mortgage should be assigned to the plaintiffs, and mortgage foreclosed to pay their demand. The decree was affirmed by the Court of Appeals. (Vail v. Foster et al., 4 Comst., 312.)
2 In the original bill there were several other parties defendants ; but the statement of the facts, as I have set them forth, does not render these parties necessary, and they are accordingly omitted.
That the said premises were purchased at said sale, by or for the defendant, Tilley Morgan, of the said town of Stanford, for the sum of $525.50, for which, by the terms of sale and agreement between the plaintiffs and the said Tilley Morgan, the plaintiffs were to execute a deed for the premises so sold, and the said Tilley Morgan was to give back to them a bond and mortgage upon the said premises, for the purpose of securing the payment of such purchase moneys.
That the said deed bears date on the said 22d day of February, 1840, and the bond and mortgage hereafter described as executed by the said Tilley Morgan for the said purchase money bear equal date therewith ; but, in point of fact, the said deed and bond and mortgage were not executed and delivered until the 1st day of April next thereafter, being the 1st day of April, 1840, which said deed and mortgage are duly recorded in the clerk's office, in said county of Dutchess.
That after the said sale, and before the said deed and bond and mortgage, or either of them, were executed and delivered, and before the note, hereinafter referred to and described as drawn by the defendant, Abraham Flagler, and the plaintiffs, was executed, the said Abraham Flagler or the said Tilley Morgan, or both of them, proposed to the plaintiffs to take his, the said Abraham Flagler's, promissory note for the amount of the said consideration moneys, instead of the mortgage of the said Tilley Morgan, aforesaid ; and to permit the said mortgage, instead of being executed to the plaintiffs, as agreed on between them and the said Tilley Morgan, to be executed and delivered to the said Abraham Flagler, which arrangement