Engle v. Underhill
New York Court of Chancery
The complainant had taken two bonds and mortgages from the defendant, James E. Underhill, on a sale of real estate; and, on non-payment, had commenced an action on the bonds in the Superior court of the city of New-York, which was at issue and noticed for trial. After the action was commenced, the complainant filed his bill to foreclose the mortgages, and he now moved, upon affidavit, to be allowed to proceed in the action.
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The complainant had taken two bonds and mortgages from the defendant, James E. Underhill, on a sale of real estate; and, on non-payment, had commenced an action on the bonds in the Superior court of the city of New-York, which was at issue and noticed for trial. After the action was commenced, the complainant filed his bill to foreclose the mortgages, and he now moved, upon affidavit, to be allowed to proceed in the action. In this affidavit he deposed : “ that all of the principal sums secured by the said mortgage, together with the interest accrued thereon since the said first day of…
1Opinion of the Court
The Vice-Chancellor :
It was a common practice, be fore the passage of the revised statutes, for a mortgagee to proceed at law upon the bond at the same time that he proceeded in this court upon the mortgage. The revisers, however, very properly thought this unnecessary, and the statute now provides for a decree over against the mortgagor, as a substitute for a judgment at law, and takes away the remedy at law on the bond, while a bill of foreclosure and sale of the mortgaged premises is pending: “ unless authorized by the court of chancery(2 R. S. 191). Here is a discretion vested in this…
2Cited by1 opinion
- In re ByrneAppellate Division of the Supreme Court of the State of New York · 1903