Pattison v. Powers
New York Court of Chancery
In May, 1802, J. Eaton gave to J. Thurman a bond and mortgage on a lot of land in the town of Chester, to secure the payment of $428,59, with interest at the rate of six per cent.; which bond and mortgage was afterwards, by divers mesne assignments, transferred to G. Gardner. The defendant H. Powers became the owner of the mortgaged premises; and assumed the payment of the amount due on the bond and mortgage.
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In May, 1802, J. Eaton gave to J. Thurman a bond and mortgage on a lot of land in the town of Chester, to secure the payment of $428,59, with interest at the rate of six per cent.; which bond and mortgage was afterwards, by divers mesne assignments, transferred to G. Gardner. The defendant H. Powers became the owner of the mortgaged premises; and assumed the payment of the amount due on the bond and mortgage. In August, 1831, to secure the payment of the amount then due, and also to secure a further sum due to G. Gardner, H. Powers gave to him a bond for the payment of $2500, and interest,…
1Opinion of the Court
The Chancellor,
after ascertaining the facts set forth in the bill, refused to make a decree for a foreclosure and sale of the mortgaged premises; as the complainant had not exhausted his remedy at law upon the judgment against H. Powers, previous to the commencement of this suit. He said the statute was imperative, that where any judgment at law had been obtained for the monies demanded by a bill of foreclosure, or for any part thereof, no proceedings should be had in the foreclosure suit, unless the sheriff should have returned to an execution issued upon such judgment, that the defendant *551the…
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