Hardin v. Hyde
New York Supreme Court
THIS action was commenced to foreclose a mortgage made by John G. Pitt, November 4th, 1857, to Albert G. Story, upon certain premises in Herkimer county, to secure the payment of $9409.11 and interest.
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THIS action was commenced to foreclose a mortgage made by John G. Pitt, November 4th, 1857, to Albert G. Story, upon certain premises in Herkimer county, to secure the payment of $9409.11 and interest. The condition stated that it was intended as security for the payment of that sum to Albert G. Story, in trust, to collect, receive and apply the same or so much thereof as might be necessary, to the full payment and satisfaction of the sum of $3000 and interest, to the Herkimer County Bank, and of the further sum of $1000 and interest thereon to the Mohawk Valley Bank, and the further sum of…
1Opinion of the CourtMorgan, J.
The defendants took their mortgage expressly subject to the prior mortgage. It may be admitted *437that the mortgagor could defeat the prior mortgage, quoad the Herkimer County Bank as invalid. (2 R. S. 519, § 7, 5th ed.) But the question is a different one when the defendants propose to intervene between the mortgagor and the bank. It cannot be distinguished in principle from the case of a usurious mortgage which the statute declares to be void, but which a purchaser of the land, who takes it subject to the usurious mortgage, cannot avoid for that reason. (Post v. Dart, 8 Paige, 639. Cole v.…
2Cases cited1 opinion
- Post v. DartNew York Court of Chancery · 1841
3Cited by6 opinions
- McDonald v. FinsethNorth Dakota Supreme Court · 1915
- Hiner v. WhitlowSupreme Court of Arkansas · 1899
- Park v. Prendergast, Smith & Co.Court of Appeals of Texas · 1893
- Holmes v. StietzCity of New York Municipal Court · 1884
- In re Downtown Athletic Club of New York City, Inc.District Court, S.D. New York · 1936
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