Legal Opinion

De Mott v. Benson

New York Court of Chancery

Decided September 15, 1844PublishedCited by 2 opinions

Bill for foreclosure and sale of mortgaged premises. A reference had been had to compute the amounts due on the different bonds and mortgages embraced by the suit. The great dispute between the parties was, as to the extent of this amount. The case came before the court on exceptions to the master’s report. The opinion of the vice-chancellor contains sufficient of the facts to make out the principles involved.

1Opinion of the Court

The Vice-Chancellor :

Two of the bonds and mort*298gages having been given on the settlement of accounts, for balances appearing at the time to be due, they are, prima facie, evidence that the amounts, payable by the condition of the bonds, are due.

The defendants undertake to controvert the evidence which the instruments furnish upon their face. The burthen of proof is, then, on the defendants to impeach the consideration, by showing that they were given for more than was due at the time or that they have been reduced by subsequent payments. From the course of proceeding taken in this cause, the…

2Cited by2 opinions

  1. Sturmdorf v. SaundersAppellate Division of the Supreme Court of the State of New York · 1907
  2. Forbes v. WheelerCity of New York Municipal Court · 1902

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