Ewell v. Hubbard
Appellate Division of the Supreme Court of the State of New York
Appeal from Wyoming county court. Action by Emma Ewell against David C. Hubbard and others. From a judgment in favor of plaintiff, defendants David G. Hubbard and Edward. Walter Hubbard appeal. Affirmed. The action was brought for the purpose of foreclosing a mortgage executed by Henry Hubbard, father of the defendant David C. Hubbard, given for purchase money.
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Appeal from Wyoming county court. Action by Emma Ewell against David C. Hubbard and others. From a judgment in favor of plaintiff, defendants David G. Hubbard and Edward. Walter Hubbard appeal. Affirmed. The action was brought for the purpose of foreclosing a mortgage executed by Henry Hubbard, father of the defendant David C. Hubbard, given for purchase money. After the death of the mortgagor, the defendant David C. Hubbard became the owner of six-sevenths of the property covered by the mortgage, and he took an assignment of the mortgage, and subsequently assigned it to Charles F. Miller as…
1Opinion of the CourtHardin, P. J.
The appeal before us is only by David C. Hubbard and Edward Walter Hubbard, by guardian. There is no appeal by the plaintiff, and she cannot complain that costs of the action were not allowed to her, as, according to the usual course and practice, such costs might have been allowed to her.
2. There is no averment of a merger of the mortgage by the transfer of the same to David C. Hubbard. Whether a merger takes place depends upon the intention of -the parties. Clift v. White, 12 N. Y. 519. The acts of David C. Hubbard in transferring the mortgage to secure his surety seems to indicate that he…
2Cases cited2 opinions
- Clift v. . WhiteNew York Court of Appeals · 1855
- Cross v. SmithNew York Supreme Court · 1895