Renwick v. Macomb — 1 Hopk. Ch. 277

Majority

p. 277

James Renwick, v. Robert Macomb, Ferris Pell, and others.

1824. 19th Nov.

Headnote

'The amounts of all incumbrances on mortgaged premises must be reported by the-master, before a sale will be ordered : and this, though the amount due to one defendant is litigated by another defendant; and though there is no question as to the amount-due to the complainant. There maybe exceptions to this course, in special cases*

Bill on a mortgage. The amount due to the complainant was not contested. The defendant Pell, was a subsequent incumbrancer by means of a mortgage made to secure a bond for performance of covenants; and on taking the account before the master, it appeared, that the question whether any thing or how much was due on this bond, was matter of litigation between the defendants Macomb and Pell.

Mr. D. S. Jones now presented a petition on behalf of the complainant, that the master might be directed to report separately, the amount due to the complainant, to the end that he might he enabled to set down the cause for hearing this term.

Mr. Van Wyck and S. M. Hopkins for the defendants.

The regular course is, that all incumbrances should he reported before a decree of sale. It is important to preserve this course for the interest of the defendant, who must know the amount of the incumbrances, before he can redeem. It would also be inconvenient, to divide the cause into separate parts to adjust the rights of each incumbrancer. The delay which this complainant suffers, is common to this and to all other like cases. There may be cases where, on special grounds, such a petition as this would be granted; but the present case does not furnish sufficient reasons for departing from the general rule ; and still less, as it is not alleged in this case, that the mortgaged premises are insufficient to secure the debt due to the complainant.