Morris v. . Wheeler
New York Court of Appeals
Two appeals from orders of the General Term of the Supreme Court, in the second district, affirming judgments of foreclosure with costs and five per cent allowance, rendered at Special Term. These were actions for the foreclosure of two mortgages on the same premises, both commenced at the same time. The defendant, Margaret Kenny, was the owner in fee" of the mortgaged premises up to the afternoon of June 3d, 1869, when the appellant, Wheeler, purchased the same.
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Two appeals from orders of the General Term of the Supreme Court, in the second district, affirming judgments of foreclosure with costs and five per cent allowance, rendered at Special Term. These were actions for the foreclosure of two mortgages on the same premises, both commenced at the same time. The defendant, Margaret Kenny, was the owner in fee" of the mortgaged premises up to the afternoon of June 3d, 1869, when the appellant, Wheeler, purchased the same. Summons was served on Wheeler June 4th, 1869. The complaints are in the usual form for foreclosure of a mortgage. The answer…
1Opinion of the CourtGrover, J.
When there is a defect of parties, not appearing upon the face of the complaint, the objection should be taken by the answer. (Code, § 147.) In an action for the foreclosure of a mortgage, and a sale of the mortgaged premises for the satisfaction of the debt secured, all persons having liens upon the equity of redemption ar"e necessary parties. (Ensworth v. Fanning, 4 Johns. Ch., 605; McGown v. Yerks, 6 id., 450.) The answer set forth that Nathaniel L. Griswold was a necessary party, for the reason that he had recovered a judgment in the Supreme Court against Edward Kenny and Margaret, his…
2Cases cited2 opinions
- Ensworth v. LambertNew York Court of Chancery · 1820
- Pratt v. RamsdellNew York Supreme Court · 1857
3Cited by6 opinions
- Mandelino v. LevyNew York Supreme Court · 1966
- McKewen v. St. Louis, Iron Mountain & Southern Railway Co.Supreme Court of Arkansas · 1909
- Black v. O'BrienNew York Supreme Court · 1880
- House v. EisenlordNew York Supreme Court · 1883
- Lossee v. EllisNew York Supreme Court · 1878
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