Davison v. De Freest
New York Court of Chancery
The bill was filed January 23, 1845, by John M. Davison, clerk of the court of chancery, for the third circuit, to foreclose a mortgage executed to him by the defendants Walter De Freest and wife and George J. Sharp and wrife, for $4615 42, on lands in the town of Brunswick in the county of Rensselaer, under the following circumstances.
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The bill was filed January 23, 1845, by John M. Davison, clerk of the court of chancery, for the third circuit, to foreclose a mortgage executed to him by the defendants Walter De Freest and wife and George J. Sharp and wrife, for $4615 42, on lands in the town of Brunswick in the county of Rensselaer, under the following circumstances. Coonrod Colehammer, died seised and possessed of the premises, on the 19th day of March, 1838. By his last will and testament, dated May 17, 1837, he first directed the payment of his debts out of his personal property. He then devised as follows; “ Second : 1…
1Opinion of the Court
The Assistant Vice-Chancellor.
In the case of Banks and others, Executors of McCarthy v. Walker, (3 N. Y. Legal Observer, 340,(a) after a full consideration of the subject, I decided that in a suit for the foreclosure of a mortgage given for the purchase money, the mortgagor although personally liable for the debt, cannot set up as a defence, the failure of the title to the land, unless he has been evicted from the possession.
' In this suit, the mortgagors have never been disturbed in the possession of the lands. Indeed, no one makes any claim adverse to their title. Whatever may be my views…
2Cited by1 opinion
- Matter of PriceNew York Court of Appeals · 1876