Legal Opinion

McKinstry v. Curtis

New York Court of Chancery

Decided January 2, 1844PublishedCited by 15 opinions

This was an application to dissolve an injunction restraining the defendant from proceeding to foreclose a mortgage under the statute. The intestate of the complainants took a second mortgage upon the premises, for a debt due from the mortgagor, but without personal liability on the part of the mortgagor for the debt. The complainants foreclosed that mortgage without making the holder of the prior mortgage a party, and bid in the property.

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This was an application to dissolve an injunction restraining the defendant from proceeding to foreclose a mortgage under the statute. The intestate of the complainants took a second mortgage upon the premises, for a debt due from the mortgagor, but without personal liability on the part of the mortgagor for the debt. The complainants foreclosed that mortgage without making the holder of the prior mortgage a party, and bid in the property. They thereupon insisted that the holder of the prior mortgage should resort to the personal liability of the mortgagor, upon his bond given with the first…

1Opinion of the Court

The Chancellor

decided, that where the equity of redemption in mortgaged premises is sold under a judgment, or under a junior mortgage, which judgment or mortgage is a lien upon the equity of redemption merely, the legal presumption is that the purchaser only bids to the value of such equity of redemption; and that the land thus purchased is in equity the primary fund to pay the amount due upon the *504prior bond and mortgage. He said it would therefore be inequitable for the holder of the prior bond and mortgage, in this case, to assign the same to the complainants, to enable them to collect the…

2Cited by15 opinions

  1. Northrop v. . HillNew York Court of Appeals · 1874
  2. Mathews v. . AikinNew York Court of Appeals · 1848
  3. Riggs v. ClarkCourt of Appeals for the Sixth Circuit · 1896
  4. Westcott v. Fidelity & Deposit Co.Appellate Division of the Supreme Court of the State of New York · 1903
  5. Fletcher v. ChamberlinSupreme Court of New Hampshire · 1881

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