Gouverneur v. Elmendorf
New York Court of Chancery
THE plaintiffs filed a bill, in 1810, to foreclose a mortgage executed by the defendant to them. The defendant put in his answer, on the 12th of November, 1810, in which he admitted the execution and forfeiture of the mortgage, and that he had paid only 360 dollars towards interest, in the spring of 1805. He stated, that the consideration of the mortgage was a deed from the plaintiffs to him, of the date of the 13th of May, 1804, in which, as executors of Nicholas…
Read the full summary
THE plaintiffs filed a bill, in 1810, to foreclose a mortgage executed by the defendant to them. The defendant put in his answer, on the 12th of November, 1810, in which he admitted the execution and forfeiture of the mortgage, and that he had paid only 360 dollars towards interest, in the spring of 1805. He stated, that the consideration of the mortgage was a deed from the plaintiffs to him, of the date of the 13th of May, 1804, in which, as executors of Nicholas Gouverneur, deceased, they conveyed to him, for the consideration of 8,000 dollars, “ land office treasury warrants of Virginia,…
1Opinion of the Court
The Chancellor.
The defendant is clearly too late to stay the proceedings by a cross bill. A cross bill must be filed before publication is passed in the original cause. This has been understood and declared to be the invariable rule on the subject of a cross bill. (Sterry v. Arden, 1 Johns. Ch. Rep. 62.) The practice, as stated by Lord Ilardwicke, was not to stay proceedings, but only to stay or *361enlarge publication in the first cause, until the answer to the cross bill came in: and he said it was never of course, but depended upon special circumstances, whether publication should be enlarged…
2Cases cited1 opinion
- Sterry v. ArdenNew York Court of Chancery · 1814
3Cited by1 opinion
- Helm v. First National BankIndiana Supreme Court · 1883