42 N.J. Eq. 323 | New York Court of Chancery | 1886
The petitioner, Mary Frances Gulick, who was the complainant in the above cause, claims $218.01. These moneys came into court under foreclosure proceedings in another suit, in which the above-named parties were defendants, upon a mortgage given by them. After they had executed and delivered the mortgage, a dispute arose between them as to their respective rights and inter
But Mr. Scudder comes in with his judgment, and claims, by virtue thereof, title to these same moneys. His judgment was obtained against one of the parties prior to the suit to foreclose the mortgage, by virtue of which he was made a party to that suit, and obtained a decree in his favor for the amount of the judgment. But, it appearing before his judgment was satisfied that these lands were only held in trust by the judgment debtor, and that Mr. Scudder had no claim whatever against the eestuis que trustent, who were not parties to the foreclosure proceedings, the moneys arising from the sale, after satisfying the mortgage, were ordered paid into court. Mr. Scudder thinks he has as good a title to this money as Mrs. Gulick. Indeed, he claims that his lien or right is as substantial as that of the mortgagee, who had a lien upon the lands by virtue of his mortgage as he has had by virtue of his judgment. It is not for me to determine the rights of Mr. Scudder, by a comparison with the mortgagee, who is out of court and has his money, nor with Mrs. Gulick as a creditor simply. The only question for me to deter
The costs incurred in the litigation being greatly in excess of the fund in court, I will advise an order directing the payment of the $218.01 to the petitioner, Mrs. Gulick, to be applied to the payment of her costs in the above-stated case.