Drake v. . Paige
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 30, 1889, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
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Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 30, 1889, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This action was brought to partition certain lands devised by the eighth clause of the last will and testament of Hazard Lewis, which reads as follows: “All the rest and residue of my estate, whether real or personal, of every name, kind and description, and wheresoever situate, after the payment of my just debts and funeral and testamentary expenses, I give, devise- and…
1Opinion of the CourtParker, J.
If the title to the share devised to Frederick Lewis was still in him unencumbered, equity might in this suit protect Paige by charging such share with the amount of Lewis’ misappropriation. But Lewis, for the purpose of securing certain obligations and causing the payment of others, undertook to mortgage the share of the estate devised to him. And default being made, foreclosure and a deed to the plaintiff’s predecessor in title resulted.
Our first inquiry, therefore, is whether the title was in Lewis so that he could mortgage or convey an undivided one-fourth of the real estate devised by…
2Cases cited4 opinions
- Crittenden v. . FairchildNew York Court of Appeals · 1869
- Ackerman v. . GortonNew York Court of Appeals · 1876
- Reed & Van Wart v. UnderhillNew York Supreme Court · 1851
- Clapp v. MeseroleNew York Court of Appeals · 1864
3Cited by3 opinions
- Brinckerhoff v. Holland Trust Co.U.S. Circuit Court for the District of Southern New York · 1908
- In re the Judicial Settlement of JohnsonNew York Surrogate's Court · 1904
- Hurrell v. HurrellAppellate Division of the Supreme Court of the State of New York · 1901