Western Insurance Co. of Buffalo v. Eagle Fire Insurance
New York Court of Chancery
The complainants, as mortgagees of certain premises in the city of New York, filed their bill in this cause against the mortgagor and several junior incumbrancers, and also against the Eagle Eire Company of New York, as prior mortgagees of the same premises.
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The complainants, as mortgagees of certain premises in the city of New York, filed their bill in this cause against the mortgagor and several junior incumbrancers, and also against the Eagle Eire Company of New York, as prior mortgagees of the same premises. The bill alleged that a part of the prior mortgages had been paid, and prayed a discovery and *reference to a master to ascertain the amount due; and that the mortgaged premises might be sold, subject to the incumbrance of the prior mortgages, or the amount due thereon, as thus ascertained; or that the complainants might be permitted to…
1Opinion of the Court
The Chancellor :—Whether this court can decree a sale of the mortgaged premises without the consent of these defendants, for the purpose of satisfying all the incumbrances out of the proceeds of such sale, according to their order of priority, is a question not properly presented by the demurrer. The proper object of a demurrer is to pre*286vent the necessity of a discovery, or to save the expense of a protracted litigation, by settling the rights of the parties upon some dry point of law, plainly arising upon the case made by the bill. (Brooke v. Hewett, 3 Ves. jun. 253.) Where the complainant…
2Cited by20 opinions
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- Cullum v. ErwinSupreme Court of Alabama · 1842
- Seymour & Brown v. Canandaigua & Niagara Falls Rail RoadNew York Supreme Court · 1857
- Frost v. . Yonkers Savings BankNew York Court of Appeals · 1877
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