2 Barb. Ch. 440 | New York Court of Chancery | 1847
The complainant made a mistake in drawing up the decree. For, upon a fair construction of its language, the appellant is made contingently liable for the-amount of the bond and mortgage given by Crandall, as well as for- the whole costs of the suit. He is clearly not- liable for any part of the amount due upon that bond and mortgage. And if this part of- the decree had- been objected to in the court below, there is no question that- it would have been properly settled before-it was entered; and- thus have saved the delay and expense of- an appeal. Although- this part of the decree
In the present case, although the question as to the priority
The decree must be modified so as to direct the master to ascertain the amount of costs to which the complainant would have been entitled, upon an ordinary decree, on a bill taken as confessed against all of the defendants; and to pay that amount, and also the costs and expenses of the sale, out of the proceeds of the mortgaged premises in the first place. The amount due on the second of January, 1846, the date of the master’s report, upon the bond and mortgage given by the appellant, must be computed and stated in the decree; and the master who makes the sale must be directed next to pay that amount, with interest from the second of January, 1846, out of the proceeds of such sale. And if there is more than sufficient for those purposes, he must apply the residue of such proceeds, or so much thereof as may be necessary for that purpose, to pay the amount due on the complainant’s second mortgage, with interest thereon from the last mentioned day; and he must bring the surplus, if any, into court for the benefit of whoever may be entitled to it, and subject to the further order
The appellant must also pay the respondent’s costs upon this appeal, to be taxed.