Newell v. Fowler
New York Supreme Court
MOTION by the plaintiffs to set aside a nonsuit and for a new trial; ordered to be first beard at a general term. The action was brought originally against Reuben W. Fowler, the defendant’s testator, in his lifetime, and was tried at a circuit court held in Ontario county, in November, 1855, before T. R. Strong, justice, and a jury, when the plaintiffs were non-suited.
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MOTION by the plaintiffs to set aside a nonsuit and for a new trial; ordered to be first beard at a general term. The action was brought originally against Reuben W. Fowler, the defendant’s testator, in his lifetime, and was tried at a circuit court held in Ontario county, in November, 1855, before T. R. Strong, justice, and a jury, when the plaintiffs were non-suited. The testator died after the trial, and his executor, the above defendant, was afterwards substituted as defendant in the action. Upon the trial the following facts appeared: On or about the 15th day of October, 1837, one Asahel…
1Opinion of the Court
By the Court,. Welles, J.
The facts established by the pleadings, in connection with the evidence, show that the premises embraced in the mortgage were, before it was executed, and have ever since continued, incumbered of record to an amount exceeding their value, and that at some time between the execution of the bond and mortgage by Kent and the commencement of the actionj Kent had died insolvent, and leaving no property. Any legal proceedings, therefore, to collect the money by foreclosure of the mortgage at any time after it was given, or against Kent or his estate at the time of the…
2Cases cited3 opinions
- Moakley v. RiggsNew York Supreme Court · 1821
- Burt v. HornerNew York Supreme Court · 1849
- Van Derveer v. WrightNew York Supreme Court · 1849
3Cited by10 opinions
- Pierce v. MerrillCalifornia Supreme Court · 1900
- Johnson v. CookWashington Supreme Court · 1901
- Schmitz v. . LanghaarNew York Court of Appeals · 1882
- Cady v. SheldonNew York Supreme Court · 1862
- Warfield v. WatkinsNew York Supreme Court · 1859
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