Bank of Rochester v. Emerson
New York Court of Chancery
This was an appeal from a decretal order of the vice chancellor of the eighth circuit allowing a plea. The Bank of Rochester filed a bill against the defendant Emerson, to foreclose a mortgage given by him, and obtained the usual decree over against him for the deficiency in case the proceeds of the mortgaged premises should be insufficient to pay the debt and costs.
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This was an appeal from a decretal order of the vice chancellor of the eighth circuit allowing a plea. The Bank of Rochester filed a bill against the defendant Emerson, to foreclose a mortgage given by him, and obtained the usual decree over against him for the deficiency in case the proceeds of the mortgaged premises should be insufficient to pay the debt and costs. And the bill in the present suit was an ordinary creditor’s bill to obtain satisfaction of the amount of such deficiency. The bill, after stating the decree, the sale of the mortgaged premises by the master, and the application…
1Opinion of the Court
The Chancellor.
The question raised by the plea in this case is not one of mere irregularity in the execution j for the court does not determine questions of irregularity in a collateral suit. But the plea shows that at the time this execution issued, and for aught that appears to the contrary at the time it was returned by the sheriff unsatisfied, there was no decree of the court authorizing the issuing of an execution for the deficiency reported due upon the master’s sale. The decree stated in the complainant’s bill is not like a judgment at common law ; which, when entered, relates back to…
2Cases cited2 opinions
- Marvin v. HerrickNew York Supreme Court · 1830
- Barrie v. DanaNew York Supreme Court · 1822
3Cited by6 opinions
- Thomas v. SimmonsIndiana Supreme Court · 1885
- Emigrant Industrial Savings Bank v. Van BokkelenNew York Court of Appeals · 1935
- French v. FrenchAppellate Division of the Supreme Court of the State of New York · 1905
- Field v. Saginaw Circuit JudgeMichigan Supreme Court · 1900
- Cobb v. ThorntonNew York Supreme Court · 1852
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