Vartie v. Underwood
New York Supreme Court
This was an appeal from a decision made at a special term, on exceptions to a referee’s report. The action was to foreclose a mortgage executed by the defendants Underwood and wife to the plaintiff. Upon the sale of the mortgaged premises, in pursuance of the judgment, there were surplus moneys, after satisfying the mortgage, which were claimed by the judgment creditors of Underwood and also by Mrs. Underwood.
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This was an appeal from a decision made at a special term, on exceptions to a referee’s report. The action was to foreclose a mortgage executed by the defendants Underwood and wife to the plaintiff. Upon the sale of the mortgaged premises, in pursuance of the judgment, there were surplus moneys, after satisfying the mortgage, which were claimed by the judgment creditors of Underwood and also by Mrs. Underwood. The whole of the money arising from the sale was directed to be paid into court in the first instance, and a reference was ordered. The referee was directed to ascertain the rights and…
1Opinion of the Court
By the Court, Johnson, P. J.
The first exception taken by the creditors raises the question of the right of Mrs. Underwood, the wife of the debtor, to any portion of the surplus.
The premises mortgaged were 100 acres of land, and the referee reports that the wife was the owner in her own right of one-sixth part of seventy-five acres of the one hundred acres.
The principle that the wife, who joins with the husband, in a mortgage of her own property, to secure his debts or the payment of money loaned to him, is the surety merely of her husband, and is entitled to all the rights and privileges of a…
2Cases cited4 opinions
- Neimcewicz v. GahnNew York Court of Chancery · 1831
- Hawley v. BradfordNew York Court of Chancery · 1841
- Denton v. NannyNew York Supreme Court · 1850
- Fitch v. CothealNew York Court of Chancery · 1844
3Cited by37 opinions
- Cross v. AllenSupreme Court of the United States · 1891
- Malloney v. . HoranNew York Court of Appeals · 1872
- Gresham v. WareSupreme Court of Alabama · 1885
- Green v. ScranageSupreme Court of Iowa · 1865
- Bradley v. . WalkerNew York Court of Appeals · 1893
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