Legal Opinion

Ex parte Morris

District Court, D. Massachusetts

Decided August 15, 1875PublishedCited by 2 opinions

Doctrine of Ex parte Waring.2 — In June, 1S74, George F. Foye mortgaged his stock and fixtures to his brother, John W. Foye, to secure him for all liabilities he had assumed or might assume for the mortgagor. Within a few months both parties became bankrupt, and the petitioner was chosen assignee of both estates. He realized about $9,000 from the sale of the mortgaged property, and nothing of importance from any other assets in either case.

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Doctrine of Ex parte Waring.2 — In June, 1S74, George F. Foye mortgaged his stock and fixtures to his brother, John W. Foye, to secure him for all liabilities he had assumed or might assume for the mortgagor. Within a few months both parties became bankrupt, and the petitioner was chosen assignee of both estates. He realized about $9,000 from the sale of the mortgaged property, and nothing of importance from any other assets in either case. Upon his petition, asking directions for the distribution of the assets, the register notified all creditors, and from his report and from the papers on…

1Opinion of the Court

LOWELL, District Judge.

It is well settled that if a mortgage, pledge, or lien is given by a principal debtor to secure his indorsee or other surety, and both become insolvent, the holders of the notes or other debts for which the surety is bound have an equity to require the property to be applied to the discharge of their debts specifically. Many of the American cases upon this subject are reviewed by the late Judge Hall in Jaycox’s Case [Case No. 7,242], and by the learned American editors in 1 Lead. Cas. Eq. (Ed. 1859) p. 163. The English decisions I have not seen fully collected, but have…

2Cases cited1 opinion

  1. Merchants' Nat. B'k of Syracuse v. . ComstockNew York Court of Appeals · 1873

3Cited by2 opinions

  1. In re BaxterDistrict Court, S.D. New York · 1882
  2. Keene Five Cents Savings Bank v. HerrickSupreme Court of New Hampshire · 1882

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