Catlin v. Harned
New York Court of Chancery
PTT.T, to foreclose a mortgage, executed by J. Harned and his wife, to the plaintiff The mortgagors answered, ad-raiding the facts, and consenting to a foreclosure. Two of the defendants who had obtained judgments against J, JIar- ' ned, subsequent to the plaintiff’s mortgage, suffered the bill to be taken against them, pro confesso.
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PTT.T, to foreclose a mortgage, executed by J. Harned and his wife, to the plaintiff The mortgagors answered, ad-raiding the facts, and consenting to a foreclosure. Two of the defendants who had obtained judgments against J, JIar- ' ned, subsequent to the plaintiff’s mortgage, suffered the bill to be taken against them, pro confesso. J. TV. a subsequent mortgagee, and G. C. a subsequent judgment creditor, answered separately, admitting the facts charged in tl?e plaintiff’s bill, and disclaiming; and the only question was, whether they were entitled, on their disclaimer, tq costs against the…
1Opinion of the Court
The Chancellor.
The defendants who. have disclaimed are entitled to costs against the plaintiff, to be paid out qf the fund, if sufficient, to satisfy the demand of the plaintiff" and their costs ; and if not sufficient, then to be paid by the plaintiff. They were not called upon nor requested to disclaim, by release or otherwise, before suit brought, which application to them would, probably, have saved the necessity of making them defendants. A very slight refusal or neglect, on the part of these defendants, might be sufficient to deprive them of costs; but without fault, and even ignorant,…
2Cited by1 opinion
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