3 Paige Ch. 336 | New York Court of Chancery | 1831
The complainant Matthew Clarkson, has a mortgage, executed by the defendant J. F. De Peyster, on certain lands in the county of St. Lawrence; and as additional security for the same debt, he has an assignment, by way of mortgage, of 20 shares in the Tontine Coffee House, in New-York, subject to a prior lien in favor of the guardians of the infant children of H. A. Coster. The guardians also claim a prior lien on the St. Lawrence lands, as security for their debt from the defendant F. De Peyster. But it is alleged in the bill that they have, as a further security for their debt, a mortgage fromF. De Peyster, on certain lands belonging to him, in the city of New-York, and on certain other lands in Dutchess county. The complainants, M. Clarkson and wife, have also a decree in this court, which, by the issuing of an execu
Where a person who has no interest in the controversy, and has no equity against the defendants, is improperly joined as a complainant, it is undoubtedly a good ground of demurrer to the whole bill. (The King of Spain and others v. Machado, 4 Russ. Rep. 225.) But in this case it is alleged that the defendants, who are guardians of the children of Coster, have four different securities for their debt which is due from F. De Peyster: 1. The New-York lands; %. The Tontine property; 3. The Dutchess county lands; and 4. Their claim to a priority, as against the St. Lawrence county lands. The object of M. Clarkson, as the holder of the mortgage, is to throw the debt of the guardians upon the first and third funds, so as to relieve the second and fourth upon which alone his mortgage is a lieu. To obtain a decree directing a sale of the New-York and Dutchess county lands in the first place to satisfy the debt to the guardians, so as to give Clarkson the benefit of this marshalling of the funds, F. De Peyster, as the owner of those lands and the mortgagor to the guardians, seems to be a necessary party. And he may be compelled to answer as to the situation of those lands, as well as to the other matters in the bill. For the reason before stated, it became necessary to make the other persons who had liens on the New-York or Dutchess county property parties to the suit. Here, however, a new equity arises. M. Clarkson and wife, by virtue of their decree and the execution issued thereon to the sheriff of New-York, obtained a lien upon the property of F. De Peyster in that city. But their decree was
A different state of facts may be presented upon the coming in of the answer of this defendant; but from what appears on the face of the bill, the demurrer is not well taken. It must therefore be overruled, with costs; and the defendant F. De Peyster must pay those costs, and answer the complainant’s bill in forty days, or an attachment may issue to compel an answer.