Majority
p. 42Boyd vs. Dodge & Burtis 1843. January 4.
Headnote
Where a junior mortgagee files a hill of foreclosure and makes the holder of a prior mortgage a party defendant, and calls for an answer as to the amount due on such prior mortgage, the latter is entitled to his costs, including the expense of his answer to the bill; to be first paid out of the proceeds of the mortgaged premises, or to be charged upon the complainant personally, in the discretion of the court.This was an application for a decree in a foreclosure cause upon bill and answer as to the defendant Burtis, and upon the bill taken as confessed as to the other defendants. Burtis was a prior mortgagee j and the complainants stated in their bill that they did not know the amount due upon the prior mortgage, and prayed for a discovery thereof. The counsel for Burtis asked for costs.
J. Rhoades, for the complainants.
D. Cady, for the defendant Burtis.
said the defendant Burtis, as a prior mortgagee, was entitled to his whole costs, including the costs of his answer, to he first paid out of the proceeds of
p. 43
the mortgaged premises, or to be paid by the complainant personally, in the discretion of the court; that in ordinary cases it was not necessary to- call for an answer from the prior mortgagee as to the amount due upon his mortgage, but the amount should be left to be settled by the master upon the usual order of reference, under the 134th rule of the court • and that if the complainant called for an answer from the prior mortgagee without any sufficient cause, he ought to be charged with the extra costs occasioned thereby, to be paid by him personally.