Johnson v. . Zink
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the eighth judicial district, affirming a judgment in favor of the plaintiff, entered on the report of a referee.
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Appeal from judgment of the General Term of the Supreme Court in the eighth judicial district, affirming a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought to restrain the prosecution by the defendant of an action upon a bond given by the plaintiff, which was secured by a mortgage on real estate, and for the subrogation of the plaintiff or some person nominated by him to the rights of the defendant, on being paid the amount due him. (Reported below, 52 Barb., 396.) On the 29th day of August, 1856, the plaintiff, being the owner of a lot of land in…
1Opinion of the Court
Lott, Ch. C.
The conveyance by the mortgagor of the mortgaged premises, “ subject to ” the mortgage in question, to Comstock conveyed to him the equity of redemption only, and consequently the mortgage was to be discharged and satisfied out of those premises, before any right or interest therein was acquired by the grantee, and as between those parties it is clearly equitable that such discharge and satisfaction should be made out of the said premises, and that the obligor and mortgagor should not, in exoneration thereof, personally be called1 upon to pay the same out of his individual…
2Cases cited4 opinions
- Ferris v. CrawfordNew York Supreme Court · 1845
- Jumel v. JumelNew York Court of Chancery · 1839
- Cherry v. MonroNew York Court of Chancery · 1848
- Stebbins v. HallNew York Supreme Court · 1859
3Cited by38 opinions
- Morehouse v. . Brooklyn Heights R.R. Co.New York Court of Appeals · 1906
- Arnold v. . GreenNew York Court of Appeals · 1889
- Bunch v. GraveIndiana Supreme Court · 1887
- Orrick v. DurhamSupreme Court of Missouri · 1883
- Twombly v. . CassidyNew York Court of Appeals · 1880
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