1 Cl. Ch. 395 | New York Court of Chancery | 1840
It is, perhaps, to be regretted that the complainant in this cause did not suspend the proceedings upon his mortgage, until the bill filed by the defendant Brown, could have been brought to a hearing and decision. That bill, though filed by a junior incumbrancer, was framed in such a manner as to settle the rights of afithe parties, who appear here as parties litigant, by a single decree of this court. There is some embarrassment in this case, from the facts appealing from Brown’s answer, though not evidence here, that the complainant has a mortgage upon one lot; The New-York Life Insurance and Trust Company upon another lot; and the representatives of Hoyt upon another lot; all of which are the first incumbrancers upon the lots respectively mortgaged to them ; while the three defendants who have answered, have simultaneous imcumbrances apparently upon these lots. The mortgage of the complainant, at any rate, is confessedly the first incumbrance upon the premises covered by his mortgage, and I know of no rule by which I can compel him to delay proceedings to collect his mortgage, until junior incumbrancers covering a larger amount of property, can adjust their rights and equities. The complainant cannot be bound to wait the tardy process of such secondary suit, though I am free to admit that it would have been greatly to the interest of all the parties, if he had voluntarily consented so to do.
The defendants who have answered seem to suppose that no sale will be ordered in this cause, until the amount of all the incumbrances on the mortgaged premises shall be reported by the master; and they cite Renwick vs. Macomb and Pell, 1 Hopkins’ 277,
I believe I am sustained in the view I have taken of this case by the Chancellor, in the decision made by him in the case of The Union Insurance Company, vs. Van Rensselaer, 4 Paige, 85. He there intimates very clearly, that the practice has been changed since the decisions above quoted from Hopkin’s Reports.
The master’s report must be confirmed, and the usual decree of sale made, leaving to the defendants, if there is any surplus upon the sale so ordered, to obtain the usual reference to determine their rights as between themselves.