Halsted v. Halsted
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment entered upon the report of a referee. This was an action for partition of certain real estate situate in Westchester county. The defendant Asa Stevens was made a party, as assignee, for the benefit of creditors of defendant Augustus M. Halsted, one of the tenants in common.
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Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment entered upon the report of a referee. This was an action for partition of certain real estate situate in Westchester county. The defendant Asa Stevens was made a party, as assignee, for the benefit of creditors of defendant Augustus M. Halsted, one of the tenants in common. Stevens put in an answer alleging that he is such assignee, and claiming all the interest of said Augustus in the premises. The usual order of reference, as in case of default, was made as required by…
1Opinion of the CourtAndrews, J.
I think the referee was justified, by the order of reference and by the practice of the court, in taking proof, and passing upon the question of the validity of the mortgage from Augustus M. Halsted to the plaintiff, although it was not raised by any formal issue in the pleadings. Prior to the Revised Statutes, an incumbrancer upon the undivided share of an estate was not a proper party in the suit for the partition of the whole property. . (Harwood v. Kirby, 1 Paige, 470.) His interest was not affected by the partition. The lien attached to the divided share in case of actual partition, and…
2Cases cited2 opinions
- Dunham v. MinardNew York Court of Chancery · 1834
- Harwood v. KirbyNew York Court of Chancery · 1829