Swarthout v. . Curtis
New York Court of Appeals
* Appeal from the general term of the Supreme Court, in the seventh district, where a decree of the special term, at Canandaigua, in a suit in equity, had been affirmed. (Reported below, 7 Barb. 354.) This was a hill in equity filed by certain mortgagees of a farm in Seneca county, to have a discharge of the said mortgage annulled and set aside, their mortgage and the record thereof confirmed, and for a foreclosure of the same.
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* Appeal from the general term of the Supreme Court, in the seventh district, where a decree of the special term, at Canandaigua, in a suit in equity, had been affirmed. (Reported below, 7 Barb. 354.) This was a hill in equity filed by certain mortgagees of a farm in Seneca county, to have a discharge of the said mortgage annulled and set aside, their mortgage and the record thereof confirmed, and for a foreclosure of the same. In 1829, James Swarthout was indebted in a considerable amount to his father-in-law, Joseph Hunt, for which the latter held the sealed notes of Swarthout. These were…
1Opinion of the Court
*Foot, J.
The authority given by the order of the vice-chancellor of the sixth circuit to Miller, the guardian, to release, discharge and cancel the bond and mortgage given by James Swarthout, for the benefit of his children, was conditional. The guardian had no right to discharge that mortgage, until he had received from James Swarthout a bond and mortgage upon unincumbered real estate, of sufficient value to be ample security for the money belonging to his children. The condition was not performed; yet the guardian discharged the mortgage of record, and the question is, whether the…
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