Legal Opinion

Cox v. Wheeler

New York Court of Chancery

Decided September 18, 1838PublishedCited by 11 opinions

This was an appeal from a decree of the late vice chancellor of the fifth circuit, dismissing the complainant’s bill with costs.

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This was an appeal from a decree of the late vice chancellor of the fifth circuit, dismissing the complainant’s bill with costs. In September, 1830, the complainant held a bond and mortgage against the defendant, payable by instalments ; on which was then due $558,33, and the further sum of $300 and interest was to become due and payable on the 27th of August, 1831. The complainant advertised the premises for sale, on a statute foreclosure, and on the 17th of March, 1831, the premises were sold at public vendue, subject to the future instalment, and were bid in by the complainant at $800.…

1Opinion of the Court

The Chancellor.

Upon the facts in this case, I cannot see that there is any foundation, either in law or equity for the claim set up by the appellant to offset the last instalment due on the bond and mortgage, against the surplus monies raised by the statute foreclosure for the previous instalments. On the contrary, if, as alleged in the answer, the value of the premises was as much or more than the amount of the last instalment in addition to the $800 bid at the sale, the respondent would have a perfect right in equity to restrain the appellant from proceeding at law on his bond to collect…

2Cited by11 opinions

  1. McLean v. Presley's Adm'rSupreme Court of Alabama · 1876
  2. Poweshiek County v. DennisonSupreme Court of Iowa · 1873
  3. Stockton Savings & Loan Society v. HarroldCalifornia Supreme Court · 1900
  4. Johnson v. PayneNebraska Supreme Court · 1881
  5. Cormerais v. GenellaCalifornia Supreme Court · 1863

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