« ΠροηγούμενηΣυνέχεια »
and continued to be to the time of his death, seized in fee simple of a certain piece or parcel of land, situated, &c., [describing the premises. ]
That said A. B., being so seized, on or about the, &c., executed to the abovenamed defendant a mortgage upon said premises, for securing the repayment of the sum of $ -, with interest, then advanced by the defendant to said A. B.
That soon after the making of said security, the defendant entered into the possession of said mortgaged premises and into the receipt of the rents and profits thereof, and has ever since continued in such possession and receipt.
That said A. B. departed this life on or about the, &c., intestate, leaving the plaintiff his sole heir-at-law.
That the plaintiff has applied to said defendant, since the death of said A. B., to come to an account of the rents and profits of the said premises so received by him, and to pay over to the plaintiff what he should appear so to have received beyond the amount of the principal and interest due him, and to deliver up the possession of the said mortgaged premises, but the defendant refuses, and still continues to refuse so to do.
Wherefore the plaintiff demands that an account may be taken of what, if anything, is due to the said defendant, for principal and interest on the said mortgage, and that an account may also be taken of the rents and profits of the said mortgaged premises which have been possessed or received by said defendant, or by his order, or for his use, or which, without his willful default or neglect, might have been received; and that if it shall appear that the said rents and profits have been more than sufficient to satisfy the principal and interest of the said mortgage, then that the residue may be paid over to the plaintiff, and that the plaintiff may be permitted to redeem the said premises, he being ready and willing, and hereby offering, to pay what, if anything, shall appear to remain due in respect to the principal and interest on the said mortgage; and that the defendant may be adjudged to deliver up the possession of the said mortgaged premises to the plaintiff, or to such person as he shall direct, free from all incumbrances, made by him or by any person claiming under him, and may also deliver over to the plaintiff all deeds and writings, in his custody or power, relating to said mortgaged premises, or for such further, &c., [as in No. 1.]
Complaint by a junior judgment créditor, who had not been
made a party to a bill of foreclosure, to redeem premises sold under a decree of foreclosure, on payment of amount due, with interest and value of permanent improvements, deducting rents and profits received.
SUPREME COURT - ONEIDA COUNTY.
agt. William Cooper and John E. Cooper.
The plaintiff complains of the defendants, and alleges the following facts for his cause of action :
| This is adapted from an equity precedent in the case of Brainard v. Cooper, in which the Supreme Court, at General Term, approved the decree of the Vice-Chancellor, granting the relief claimed in the bill, with costs.
" The omission to make a creditor a party does not open the decree, but merely leaves his rights to redeem unimpaired; in other respects, That, on or about the 18th day of August, 1832, one Charles Giles, then of Whitestown or New Hartford, in the county of Oneida and State of New York, became and was indebted to the plaintiff in the sum of $610, and, being so indebted, the plaintiff, on the day and year aforesaid, obtained a judgment against the said Charles Giles, in the Supreme Court of the State of New-York, for the sum aforesaid and caused the same to be docketed on the day and year aforesaid, in the office of the clerk of said court, at the city of Utica, which judgment, so obtained as aforesaid, together with the lawful interest thereon from the date last aforesaid, yet remains due and unpaid, except the sum of $56.36, or thereabouts, which was paid by the said Charles Giles to the plaintiff in the summer of the year 1841.
That, on the said 18th day of August, 1832, the said Charles Giles owned and was possessed, as in fee simple, of all that certain piece or parcel of land, situated, lying
the decree is in full force. The title of the purchaser, under the mortgage sale and Master's deed, is as valid as if the deed had been executed by the mortgagor or mortgagee ( 2 R. S., 193, § 58); and as the redeeming party is entitled to be substituted in place of the person whose interest he discharges, he does not, by redeeming, simply remove the incumbrance so that he may enforce his own lien, but he thereby becomes vested with the estate which the person has, whose interest he discharges.
“Were it not so, it would be exceedingly unsafe to redeem. If the party does not succeed to the rights of the mortgagee or person from whom he redeems, but simply removes the incumbrances, an intermediate incumbrancer would have a right to enforce his lien against the property, without repaying to the redeeming creditor the money advanced in discharging the prior lien.
“But the rule is otherwise. The party redeeming an unforeclosed mortgage has a right to use the redeemed mortgage for the purpose of protecting himself against intermediate liens.” Extract from opinion of Pratt, J., at General Term.
and being in New Hartford (formerly Whitestown), in the county of Oneida and State of New York, and bounded as follows, to wit: [Describing the premises. ]
That, as plaintiff is informed and believes, on or about the 29th day of December, in the year 1830, the said Charles Giles became and was indebted to The New-York Life Insurance and Trust Company in the sum of $720, or thereabouts, and, being so indebted, the said Charles Giles, in order to secure the payment of the said sum of money, with the lawful interest thereon, did make and execute, under his hand and seal, and deliver to the said New-York Life Insurance and Trust Company a certain bond or writing obligatory, bearing date the day and year aforesaid, with a penalty and with a condition thereunder, written in the usual form, for the payment of the said sum of money, with the lawful interest on the same from the date of said bond, at the times and in the manner therein mentioned.
That, as plaintiff is also informed and believes, the said Charles Giles, in order further to secure the payment of the said sum of money last abovementioned, with the lawful interest, as aforesaid, executed and delivered unto the said New-York Life Insurance and Trust Company a certain indenture of mortgage, bearing date the day and year last aforesaid, made by the said Charles Giles and Chloe, his wife, of the first part, and the said New-York Life Insurance and Trust Company of the second part, in and by which said indenture of mortgage the said parties of the first part did convey, in the usual form, by mortgage, unto the said party of the second part, the premises hereinbefore bounded and described, conditioned for the payment of the said sum of money and the lawful interest on the same, according to the terms of the condition of the said bond, that in case of the non-payment of the same, according to the terms of the said condition, the said party of the second part was authorized, in the usual form, to sell and convey the premises aforesaid, at public auction; and that, after the execution of the said indenture of mortgage, the same was duly acknowledged by the said parties of the first part, and recorded in the office of the clerk of the county of Oneida, at the city of Utica.
That, as plaintiff is also informed and believes, the said New-York Life Insurance and Trust Company did, after the execution of the said bond and mortgage, and on about the 18th day of September, 1833, sell, assign and transfer the said bond and mortgage to one William H. Halsted, and all their right, title and interest therein, for the sum of $760.18, or thereabouts, with full power and authority to receive and collect the moneys due or to become due on the same, and to enforce the same as fully as the said New-York Life Insurance and Trust Company could do, and that the said indenture of assignment, after the execution thereof, was duly acknowledged by the said New-York Life Insurance and Trust Company, and recorded in the office of the clerk of the county of Oneida, in the city of Utica.
That, as plaintiff is also informed and believes, the said William H. Halsted, on or about the 2d day of October, in the year 1833, filed his bill of complaint in the Court of Chancery of the State of New-York, for the foreclosure of the mortgage above described, and the sale of the mortgaged premises therein mentioned and set forth, by reason of a default in the performance of the condition of said bond as aforesaid ; that there were made parties defendants to said bill of complaint, and the proceedings in said suit subsequent thereto, the said Charles Giles and Chloe his wife, mortgagors as aforesaid, and Schureman Halsted, Samuel Halsted and Lewis Green, judgment creditors of said Charles Giles; that in the papers on file