Williamson v. Champlin
New York Court of Chancery
This was an appeal by the defendant, Champlin, from an order of the vice chancellor of the eighth circuit, overruling a demurrer. The bill was filed to foreclose a mortgage given by the defendant, Champlin, to P. Hodge, and afterwards assigned to the complainant.
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This was an appeal by the defendant, Champlin, from an order of the vice chancellor of the eighth circuit, overruling a demurrer. The bill was filed to foreclose a mortgage given by the defendant, Champlin, to P. Hodge, and afterwards assigned to the complainant. A suit had been commenced in the name of Hodge, upon the bond given with the mortgage, but no judgment had been obtained therein ; and the defendant demurred, because it was not stated in the bill that the suit at law had been discontinued.
1Opinion of the Court
The Chancellor.
The vice chancellor was right in supposing that the decision in Pattison v. Powers, (4 Paige’s Rep. 549,) is not an authority for allowing the demurrer in this case. That case was disposed of in court, without argument. And the expression contained in the last paragraph of the case as reported, as to the discontinuance of the suit, must have been made without reference to the particular phraseology of the statute ; and under the impression that the legislature had prohibited the filing a bill of foreclosure while a suit at law was still pending, although the mortgagee had not…
2Cited by4 opinions
- D'Agostino v. Wheel Inn, Inc., New York County Courts1970
- Sologub v. SologubNew York Supreme Court · 1951
- Gillette v. SmithNew York Supreme Court · 1879
- Schaaf v. O'BrienNew York Court of Common Pleas · 1878