Hyperlawhypertext legal database Wendell v. Wendell 3 Paige Ch. 509

← Cases

Wendell v. Wendell

3 Paige Ch. 509 Court N.Y. Ch. Decision date 1831-09-03 English

Contents

Majority

p. 509
Wendell, executor, &c. vs. M. Wendell and others. M. Wendell and others vs. Winne and others.
Sept. 3.

Headnote

Where there were two separate mortgages on the same property, belonging to different mortgagees, and the holder of the first mortgage filed a bill of foreclosure against the second mortgagees and the owners of the mortgaged premises, and the same solicitor filed another bill in behalf of the second mortgagee, against the first mortgagee and the owners of the premises, to foreclose the second mortgage; Held, that only one bill of foreclosure was necessary; and that the owners of the equity of redemption were to be charged with the costs of one suit only.
The complainants in the last of these causes executed a mortgage to M. Trotter. They afterwards sold the mortgaged premises to Winne and Fonda, and took back a mortgage, for the payment of the purchase money on that sale, conditioned also to pay off the previous mortgage to Trotter. Winne and Fonda afterwards sold the premises to the ancestor of the infant defendants in these causes, subject to the payment of both mortgages. The executor of Trotter filed his bill in the first cause to foreclose the mortgage given to his testator, and made his mortgagors and also the mortgagors in the last mortgage, together with the infants who were the present owners of the equity of redemption, parties defendants. The mortgagees in the second mortgage at the same time, and by the same solicitor, filed another bill to foreclose their mortgage, making the executor of Trotter and also the mortgagors in the second mortgage^ together with the infant owners of the equity of redemption, parties defendants. The guardian ad litem for the infant defendants objected to the making of two distinct decrees, charging the property of the infants with the payment of- two separate bills of costs, as unnecessary and oppressive.
J. L' Jhnoreaux, for the complainants.
Ira Harris, for the infant defendants.

decided that it was unnecessary and improper to file two distinct and separate bills to foreclose these , . _ , two mortgages on the same property. That as all the subsequent incumbrancers, as well as the owners of the equity of redemption, were before the court in the first suit, the rights of all might have been provided for by a decree in that suit; or, as the executor of the first mortgagee was a party defendant in the second suit, the decree in that suit might, of course, have provided for the payment of the first mortgage out of the proceeds of the sale under the decree in that cause. That the 134th rule had expressly directed the computation of the amount due to a prior incumbrancer who was a party defendant, so that the payment of his debt and costs might be first provided for in the decree. That as the decree to be made in either of these suits would or might dispose of the whole proceeds of the mortgaged premises according to the equitable rights of the parties, the solicitor for the several complainants might now elect in which suit to take a decree for a foreclosure, sale, and distribution; but that the property of these infant defendants should not be charged with the costs of both suits.

The solicitor elected to take his decree in the last suit, and the bill in the first suit was thereupon dismissed.[1]

(a) (a) See De La Vergne v. Evertson and others, 1 Paige's Rep. 181 ; and Davies v. Williams, 1 Sim. Rep. 5.