| New York Court of Chancery | Mar 4, 1845
These cases came tóófe ine upon the separate appeal of W. Skidmore, in each suit, frota an order of the vice chancellor of the first circuit, made in both suits, for the appointment of a receiver of the rents and profits of mortgaged premises. There Was a final decree in each suit, for the sale of the premises mentioned in the complainant’s bill therein; with a decree ever against the mortgagor for the deficiency, if any. The premises were sold by the taaster on the 31st of October, 1844, and were bid in by the complainant •; leaving a deficiency pf $600, due upon the decree in each suit. The appellant was the owner of the equity of redemption, and was in possession of the premises, by his tenants, at the time of the
Here the deficiency was actually ascertained, on the -31st of October, when the mortgaged premises were struck off to the complainant. If the purchaser had been entitled to the immediate possession of the premises, by the terms of the decree and the conditions of the sale, the rents which fell due the next day would have belonged to him. The legal presumption, in that case, would have been that he had purchased in reference to such right, and had given more for the premises than he otherwise would have done on account pf such rents and profits.
Here, however, the purchaser was not entitled to the rents which would become due before his right to the possession of the premises was to commence; even if the order to confirm the master’s
The objection that the vice chancellor has altered a final decree, by the order appealed from, is not well taken. The final decree, in each suit, stands in full force. And the order to apply these rents towards the deficiency, due from an insolvent mortgagor, is merely a collateral remedy against this fund, which in equity was secondarily liable for the payment of such deficiency. The fact of the deficiency having been ascertained when this order was made, the vice chancellor was also right in making a final disposition of the rents and profits which were to be received; instead of charging the fund with the expense of a new application to the court for that purpose.
The order appealed from must be affirmed, upon each appeal, with costs.