« ΠροηγούμενηΣυνέχεια »
in said cause, and in the records of said Court of Chancery, no other persons appear to have been made parties to said suit; that such proceedings were thereupon had, that on the 16th day of April, in the year 1834, the said premises, by virtue of a decree entered in said cause, were sold by Chester Hayden, Esq., one of the Masters of said court, to the said Schureman Halsted, for the sum of $800; that the amount due on said bond and mortgage, as aforesaid, on the day of said sale, was $770.93; that the cost of said suit of foreclusure, including Masters fees, were $126.32, or thereabouts, and that the said Master then and there executed and delivered to the said Schureman Halsted a Master's deed of said premises so sold as aforesaid, and that said Master's deed, after the execution thereof, was duly acknowledged by the said Master, and recorded in the office of the clerk of the county of Oneida, at the city of Utica.
That no subpæna to appear and answer in said suit of foreclosure, and no notice of any kind whatsoever of said suit, or of any proceedings therein, was at any time served upon this plaintiff, and that the said plaintiff was, and for a long time thereafter remained, entirely ignorant of the filing of said bill of complaint, and of the proceedings in said suit subsequent thereto, and of the sale of said premises by virtue of the decree aforesaid.
That, as plaintiff is also informed and believes, the said Schureman Halsted, the purchaser of said premises, as aforesaid, conveyed the said premises by an absolute deed to one Phineas Hall, on or about the 20th day of October, in the year 1838, for the sum of $1,200, and that said deed of conveyance to the said Phineas Hall, after the execution thereof, was duly acknowledged by the said Schureman Halsted, 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 Phineas Hall conveyed the said premises by absolute deed to the defendants, William Cooper, Jr., and John E. Cooper, as joint purchasers, in or about the spring of the year 1841 (but at what particular time in said spring the plaintiff is unable to state), for the sum $1,550, or thereabouts.
That being entitled as aforesaid, and being willing and desirous to redeem said premises so incumbered, mortgaged and sold as aforesaid, and to pay to the said William Cooper, Jr., and John E. Cooper, all the principal money and interest, and all other money, legally due and owing to them on the said premises, so mortgaged and sold as aforesaid, in order to enable the plaintiff to redeem the same, he has frequently and in a friendly manner applied to the said William Cooper, Jr., and John E. Cooper, and desired them to inform him what sum was to be paid to discharge the amount due and owing on said premises prior to the lien of the plaintiff, so that the plaintiff might be able to redeem said premises, but that the plaintiff has not been able to obtain any satisfactory answer respecting the same.
And the plaintiff alleges, on information and belief, that the amount due and owing on said premises, in order to enable him to redeem the same, is the amount due on the mortgage at the time of said Master's sale, with the lawful interest on the same from the date of said sale to the present time, together with the value of all permanent improvements upon said premises since said sale, after de ducting from the sum total of the above items of principal, interest and improvements the amount of the rents and profits which have accrued from said premises since the time of said Master's sale, together with the lawful interest on the same;' which rents and profits the plaintiff charges
These allegations are also in the nature of legal inferences or conclusions, and should properly be omitted.
have been received and enjoyed, since the date of the said Master's sale, by the said Schureman Halstead and his grantees, to a large amount above the aggregate of the interest which has accrued on said mortgage and the value of said permanent improvements, but the exact sum the plaintiff has not been able to ascertain.
That on the 4th day of July, in the year 1842, the plaintiff called on the said William Cooper, Jr., and John E. Cooper, and offered to pay to them the sum of $500, as being the amount due on said premises, as aforesaid, prior to the lien of the plaintiff, and tendered to them the same, and at the same time offered to pay such other or further sum as might be due and owing upon the same, in order to entitle the plaintiff to redeem said premises, if any such other or further sum was so due and owing, and requested them to receive the same, but that the said William Cooper, Jr., and the said John E. Cooper, utterly refused to receive the same or any part thereof, or to have anything to do with said matter in any manner whatsoever.
That plaintiff has been at all times since said interview with the said William Cooper, Jr., and John E. Cooper, on the fourth day of July, 1842, as aforesaid, and still continues, ready and willing and desirous to pay to the said William Cooper, Jr., and John E. Cooper, all such sum or sums of money as shall equitably belong to them, in order to enable the plaintiff to redeem said premises, according to the lien of his judgment as aforesaid.
1 « If the defendant had discharged a prior mortgage, the redeeming creditor must have offered to repay, because the premises are benefited to that amount. Upon the same principle, equity compels the redeeming creditor to pay for such improvements as bave been put upon the premises. We can see no reason why any other honest expenditure of money, by which the redeeming creditor would be
Wherefore the plaintiff demands that an account may be taken, under the direction of this court, of what sum or sums of money may be due to the said William Cooper, Jr., and John E. Cooper, for principal and interest, on said mortgage, so foreclosed, as aforesaid, and for permanent improvements made on said premises, and also of the sum or sums that may have accrued from the rents and profits of said premises since said Master's sale, with interest on the same, and generally to ascertain and determine what amount should be paid by the plaintiff, in order to enable him to redeem said premises; and that the said William Cooper, Jr., and John E. Cooper, joint owners of said premises, as aforesaid, and each of them, may be compelled by the judgment of this court to surrender the possession of said premises, and to execute and deliver to the plaintiff, or to such person or persons as he shall designate, a good and sufficient conveyance and assignment in law of all and singular said premises, and their, and each of their right, title and interest therein, upon receiving from plaintiff the said sum or sums of money so due and owing to the said William Cooper, Jr., and John E. Cooper, in order to enable said plaintiff to redeem said premises, as aforesaid, said plaintiff hereby offering to pay the same; and may also be adjudged to transfer and deliver to
benefited, should not be repaid. It may be objected that a foreclosure may not always be a benefit to a redeeming creditor; the same objection might be urged against paying for improvements; there might be cases when the redeeming creditor would prefer the land without the improvements. But there is another answer to this objection. All that is claimed is, that when the court is appealed to to enforce a redemption, the party claiming the right of redemption, shall do what is equitable and right, and reimburse the person, whose interest he discharges, for all expenditure which has enhanced in value the right he acquires by such redemption, to the full amount of such expenditure.” Extract from opinion of Pratt, J.
the plaintiff, or to such person so designated, as aforesaid, each and every deed, instrument and evidence of title taken or held by them, or either of them, in their possession, or under their control, relating to or accompanying the conveyance of said premises to them, as aforesaid, or in any manner relating thereto; and if the plaintiff may not be permitted to redeem the said premises, that then the said defendants, or such of them as claim an interest in said premises, may be decreed to pay the said claims of the plaintiffs, and that the plaintiffs may have such other or further relief in the premises, &c., [as in No. 1.]
(12) IN CASES OF Divorce.
For a limited divorce or separation.
Title of the Cause.
The plaintiff complains of the defendant, and alleges the following facts constituting her cause of action.
| The court has power to decree a separation from bed and board forever, or for a limited time, on the complaint of a married woman in the following cases : 1. Between any husband and wife, inhabitants of this state; 2. Where the marriage was solemnized or took place within this state, and the wife is an actual resident at the time of exhibiting her complaint; 3. Where the marriage took place out of this state, and the parties have become and remained inhabitants of this state, at least one year, and the wife is an actual resident at the time of exhibiting her complaint. (2 R. S., 146, § 48.) If the wife reside in this state, she is to be deemed an inhabitant thereof, although her husband may reside elsewhere. (2 R. S., 147, § 48; see 2 Barb. Ch. Pr., 260.)