Legal Opinion

Mackenzie v. Alster

New York Supreme Court

Decided December 15, 1882PublishedCited by 2 opinions

This action was brought for a specific performance of a contract of sale of real property. Plaintiff’s title to the premises was through a foreclosure of a mortgage therein, by advertisement. The mortgagor was not served with the notice, but died pending the proceedings, leaving a widow and one child. The widow was served with the notice. No administrator of decedent’s estate was appointed.

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This action was brought for a specific performance of a contract of sale of real property. Plaintiff’s title to the premises was through a foreclosure of a mortgage therein, by advertisement. The mortgagor was not served with the notice, but died pending the proceedings, leaving a widow and one child. The widow was served with the notice. No administrator of decedent’s estate was appointed. The defendant rejected the title because neither the mortgagor-or the personal representatives were served with the notice.

1Opinion of the CourtGilbert, J.

The question to be decided is whether the title tendered by the plaintiff is such as a court of equity ought to compel the defendant to accept. That title is derived from the foreclosure of a mortgage made by one *389Fitzpatrick, by virtue of the statute regulating the proceedings to foreclose mortgages by advertisement (R. S., 545). Fitzpatrick died while these proceedings were pending, intestate, and no administrator of his estate has been appointed, po notice of the foreclosure of the mortgage by a sale of the mortgaged premises was served upon Fitzpatrick. These principles are well settled.

Fir…

2Cases cited5 opinions

  1. Lawrence v. . the Farmers' Loan and Trust Co.New York Court of Appeals · 1855
  2. Mowry v. . SanbornNew York Court of Appeals · 1877
  3. Arnot v. McClureNew York Supreme Court · 1847
  4. Anderson v. AustinNew York Supreme Court · 1861
  5. Cohoes Co. v. GossNew York Supreme Court · 1852

3Cited by2 opinions

  1. Bond v. FinnNew York Supreme Court · 1889
  2. Van Schaack v. SaundersNew York Supreme Court · 1884

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