Legal Opinion

Williams v. Birbeck

New York Court of Chancery

Decided February 20, 1840PublishedCited by 2 opinions

The bill in this cause was originally filed against Alexander Birbeck and wife, for the purpose of foreclosing a mortgage given by them to Matthias Bruen, and stated to have been assigned by him to the complainant. In the answer the defendant averred that he was. ready to pay the amount when he could do it with safety, but that he had been forbidden' by Matthias Bruen- to do so.

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The bill in this cause was originally filed against Alexander Birbeck and wife, for the purpose of foreclosing a mortgage given by them to Matthias Bruen, and stated to have been assigned by him to the complainant. In the answer the defendant averred that he was. ready to pay the amount when he could do it with safety, but that he had been forbidden' by Matthias Bruen- to do so. The bill. was then amended by making Bruen a party, and the only change in the record was by inserting- his name in the prayer tor process. An answer was then filed' by Bruen in which he denied the allegation that he…

1Opinion of the Court

The Assistant Vice-Chancellor :

The record was imperfect. By the' amendment Bruen appeared on the face of the bill merely as assignor' of the mortgage, without a charge of his claiming any interest, or showing any ground- for making him a party. He answers hbwe'ver,- by setting up a matter, which if established, defeats the title of the complainant entirely, and shows that he continues-the owner'' of the bond and mortgage. The replication-has sufficiently put this matter in issue, raising the question whether the complainant is lawfully the owner' of the securities. To solve that question,-…

2Cases cited7 opinions

  1. Tuttle v. Jackson ex dem. HillsCourt for the Trial of Impeachments and Correction of Errors · 1830
  2. Rossiter v. RossiterNew York Supreme Court · 1832
  3. Jackson ex dem. Merrick v. PostNew York Supreme Court · 1836
  4. Roberts v. Jackson, ex dem. WebbNew York Supreme Court · 1828
  5. Merritt v. LambertNew York Court of Chancery · 1838

2 more not listed; retrieve them via the Exa API.

3Cited by2 opinions

  1. New-York Life Insurance & Trust Co. v. SmithNew York Court of Chancery · 1847
  2. Best v. GuntherWisconsin Supreme Court · 1905

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