Rathbone v. Clark
New York Court of Chancery
The bill in this cause was filed to foreclose a mortgage given by two tenants in common of the mortgaged premises for a joint debt. Subsequent to the giving of the mortgage the owners of the equity of redemption made partition thereof between themselves, and each afterwards aliened different portions of the premises set off to him in severalty upon the partition.
Read the full summary
The bill in this cause was filed to foreclose a mortgage given by two tenants in common of the mortgaged premises for a joint debt. Subsequent to the giving of the mortgage the owners of the equity of redemption made partition thereof between themselves, and each afterwards aliened different portions of the premises set off to him in severalty upon the partition. Wilcox, one of the defendants, put in an answer admitting the rights of the complainant, but claiming to have the different portions of the premises sold in a particular manner to protect his equitable rights. And others of the…
1Opinion of the Court
The Chancellor
said, he could not upon the answer of one defendant, and without notice to other defendants, who owned different portions of the mortgaged premises, settle the order of sale by the master. That the proper decree in such a case, where the rights of the defendants were not set out in the bill and the complainants’ right to a foreclosure was not questioned, was to direct the master to sell the mortgaged premises in the inverse order of the alienation of the several parcels, and according to equity as between the several defendants; leaving the master to settle the order of sale…
2Cited by5 opinions
- Erie County Savings Bank v. . RoopNew York Court of Appeals · 1872
- Ritch v. EichelbergerSupreme Court of Florida · 1869
- Green v. CrossSupreme Court of New Hampshire · 1864
- Cowdrey v. CarpenterNew York Court of Appeals · 1869
- Cowdrey v. CarpenterThe Superior Court of New York City · 1863