Brown v. Cherry
New York Supreme Court
APPEAL from a judgment entered 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 the defendant was the holder.
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APPEAL from a judgment entered 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 the defendant was the holder. It appeared on the trial, that in 1853, 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 Langdou, 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…
1Opinion of the CourtFoster, 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 of 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 trust, was the fact of…
2Cases cited4 opinions
- Considerant v. . BrisbaneNew York Court of Appeals · 1860
- Grinnell, Minturn & Co. v. SchmidtThe Superior Court of New York City · 1850
- Rowland v. PhalenThe Superior Court of New York City · 1857
- Van Lien v. ByrnesNew York Court of Common Pleas · 1856
3Cited by3 opinions
- Wells v. FrancisSupreme Court of Colorado · 1884
- McLaughlin v. First National BankSupreme Court Of The Territory Of Dakota · 1889
- Davis v. ReynoldsNew York Supreme Court · 1874