Brown v. Cherry
New York Supreme Court
Appeal from a judgment on the report of a referee, dismissing the plaintiff’s complaint. The action was brought to restrain the defendant from foreclosing a mortgage, executed, by the plaintiff, of which she was the holder.
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Appeal from a judgment on the report of a referee, dismissing the plaintiff’s complaint. The action was brought to restrain the defendant from foreclosing a mortgage, executed, by the plaintiff, of which she was the holder. It appeared on the trial that in 1858, one, Mrs. Stewart, was the owner of personal property which had been transferred to her by her husband, before their marriage; that she sold it to John Langdon, and that Langdon, in consideration thereof, transferred the title to the real estate in question to the plaintiff Brown by deed absolute in form, and without the then…
1Opinion of the Court
By the Court,
Foster, J.
We must assume for the purpose of deciding the questions before us, not only as the referee has found, that the plaintiff received no consideration for the execution of the mortgage, but also, that it was without consideration- to Mrs. Stewart. For if that would give the plaintiff any more right to bring this action, than if she did receive a consideration, it was the duty oí the referee to find and declare how that fact was, instead of refusing to find it, on the' ground that it was immaterial.
But upon the supposition" that the plaintiff was not a trustee of an express…
2Cases cited5 opinions
- Considerant v. . BrisbaneNew York Court of Appeals · 1860
- Hosley v. . BlackNew York Court of Appeals · 1863
- Merritt v. . WalshNew York Court of Appeals · 1865
- Rowland v. PhalenThe Superior Court of New York City · 1857
- Van Lien v. ByrnesNew York Court of Common Pleas · 1856
3Cited by1 opinion
- Waterman v. . WebsterNew York Court of Appeals · 1888