1 Barb. Ch. 250 | New York Court of Chancery | 1845
It is now settled, by the decision of the court of dernier resort, that a person who advances money upon the sale of a bond and mortgage, or other chose in action, may secure to himself the right to the absolute return of his money and legal interest thereon from the vendor, without the possibility of loss, and the contingent right to recover a much larger sum, from the person who is primarily liable for the payment of the bond and mortgage, or chose in action purchased,
The proper decree, where the mortgagor is himself a party to
In the present case the bill does not state when the assignment of the bond and mortgage was made and the $2800 received, by the assignees, as the consideration thereof. The only thing admitted by the assignors, by suffering the bill to be take'n as confessed, is that the assignment was made, and the consideration thereof paid, before the commencement of this suit. The time of the filing of the complainant’s bill must therefore be ascertained from the bill on file, and inserted in the decree, as the time of such assignment. And nothing must be deducted from the liability of the assignors, under their guaranty, on account of the interest paid in November, 1844; as that does not appear to have been paid subsequent to the assignment, or to have been received by the complainant. After the usual decree for the foreclosure and sale of the mortgaged premises, and the payment of the debt and costs out of the proceeds of such sale, and a decree over against the mortgagor personally for the deficiency, if any, the decree must further direct, that if the complainant is not able to collect the amount of such deficiency out of the estate of the mortgagor, upon the issuing of an execution, against his property, to the sheriff of the county in which he resides, or of the county where he last resided in this state, the defendants, John G. Fellers and George Fellers, upon the return of such execution unsatisfied, pay so much of such deficiency as