Ferguson v. Smith
New York Court of Chancery
MOTION by Garr, for the defendant Juliana Smith, to set aside a decretal order for the sale of mortgaged premises, and under which a sale had been made, but no conveyance executed.
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MOTION by Garr, for the defendant Juliana Smith, to set aside a decretal order for the sale of mortgaged premises, and under which a sale had been made, but no conveyance executed. The affidavit stated, that subsequent to the giving of the mortgage to Marks, the premises had been conveyed to her with the assent of her husband, and that the equity of redemption was in her; that she had not been served with a subpoena to appear, and that her husband had now absconded and left her, and that she was willing to redeem the premises by paying off the mortgage debt, and bringing the money into Court.
1Opinion of the Court
The Chancellor.
The general rule is, that the service of a subpoena against husband and wife on the husband alone, is a good service on both, and the reason is, that the husband and wife are one person in law, and the husband is bound to answer for both. ( Wyatt’s Pr. Reg. 402, 403. Gilbert’s For. Rom. 41, 42. 1 Harris. Ch. Practice, 207.) But where the plaintiff is seeking relief out of the separate estate of the wife, it has been deemed necessary, in a late case, (9 Vesey, *140488.) that the wife should be served. Here *the right of redemption is exclusively in the wife, and her husband has…
2Cited by1 opinion
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