4 Paige Ch. 503 | New York Court of Chancery | 1834
The defendants’ counsel is wrong in supposing that the whole answer must be taken together as evidence, and that the complainant cannot avail himself of the admissions in one part of it, without being also bound by the statements and allegations in other parts of the same answer. This is not so, even where the complainant calls for an answer on oath; except as to those parts of it which are responsive to the bill. But where an answer on oath is waived, although as a pleading the complainant may avail himself of admissions and allegations in the answer which go to establish the case made by the bill, such answer is not evidence in favor of the defendant for any purpose.
There is no doubt., in this case, as to the complainant’s right to the surplus upon the sheriff’s sale beyond the amount which was due on the execution ; or to so much of such surplus as will be sufficient to pay the amount of his mortgage. The mortgage was a specific lien upon the land; and that being sold under a prior encumbrance, the lien of the mortgage attached upon the surplus monies raised on that sale. The sheriff had no right to pay such surplus monies to G. R Gale, the mortgagor, or to discharge the purchaser from the payment thereof, on his order, when he knew that the complainant had a specific lien thereon by virtue of his mortgage.
The defendant, J. Gale, has no legal or equitable claim to have the encumbrances on the farm, which were prior to the judgment under which he purchased, deducted from the amount of his bid. He knew of the existence of the Westervelt mortgage, and was himself the owner of the Bailey judgment at the time of the sale. He therefore bid with the full knowledge that the land in the hands of the purchaser would be liable for the payment of those encumbrances. The deputy who sold the property swears he thinks that J. Gale supposed the prior encumbrances were to be deducted from the amount of his bid. But the facts testified to by this witness show that J. Gale himself did not so understand it; for, at
There must be a decree in favor of the complainant, declaring the amount due on his mortgage to be a specific lien upon the surplus of the bid at the sheriff’s sale, after deducting from the amount of the bid the balance of the execution