Jones v. Conde
New York Court of Chancery
PETITION of the defendants, stating, that only one year’s interest is in arrear, and due and unpaid, on a bond and mortgage given to the plaintiffs, and that the plaintiffs, in January last, sued the bond at law, and filed a bill to foreclose the mortgage, in this Court; and praying, that the bill be dismissed, with costs, or that the suit in this Court be stayed until the plaintiffs shall have discontinued their suit at law, or pressed the same to the utmost extent, and…
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PETITION of the defendants, stating, that only one year’s interest is in arrear, and due and unpaid, on a bond and mortgage given to the plaintiffs, and that the plaintiffs, in January last, sued the bond at law, and filed a bill to foreclose the mortgage, in this Court; and praying, that the bill be dismissed, with costs, or that the suit in this Court be stayed until the plaintiffs shall have discontinued their suit at law, or pressed the same to the utmost extent, and failed in obtaining their demand.
1Opinion of the Court
The Chancellor.
The rule is settled, that a mortgagee may sue, at the same time, at law, upon his bond, and in this Court upon his mortgage. The case of a mortgagee forms an exception to the general rule, that a party shall not be allowed to sue at law, and here, at the same time, for the same debt. The one remedy is in rem. and the other in personam ; and the general rule to which this case is an exception, applies only to cases where the demand at law and in equity are equally personal, and not where the cumulative remedy is in personam, while the other remedy is upon the pledge. (Booth v.…
2Cases cited1 opinion
- Dunkley v. Van BurenNew York Court of Chancery · 1818
3Cited by14 opinions
- Young v. VailNew Mexico Supreme Court · 1924
- General Investment Co. v. Interborough Rapid Transit Co.Appellate Division of the Supreme Court of the State of New York · 1922
- Vansant v. AllmonIllinois Supreme Court · 1859
- Anderson v. PilgramSupreme Court of South Carolina · 1889
- The First National Bank & Trust Co. of Walton v. EisenrodAppellate Division of the Supreme Court of the State of New York · 1942
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