1 Barb. Ch. 49 | New York Court of Chancery | 1845
The application for an injunctipn. to,. stay the sale of the mortgaged premises, under the statute foreclosure, must be denied. Without going into the merits of the case upon the appeal, the presumption is that the decision of the vice chancellor was correct, and that the complainant, had. no legal or equitable claim to, a decree in his favor, in this suit. This court therefore cannot, in this summary way, review the:, decision of the vice chancellor, and grant an. injunction to stay
Indeed it was not necessary to file a bill, for the purpose of obtaining an equitable deduction from the amount apparently due upon the bond and mortgage, if any error had occurred therein, either by the fraud of the former committee, or otherwise. For as the committee was the mere officer or agent of the court in making the sale of the estate of the drunkard, the vice chancellor by whom the committee was appointed, was authorized, upon a mere petition of the purchaser, to ascertain and decide the question as to the validity of his claim to relief. And the facts of the case, if disputed, could have been ascertained by a reference to a master. The committee, however, after consenting to have the rights of the parties litigated in this suit, could not, at the hearing, object that the complainant had proceeded against him by bill, without the previous leave of the court, instead of applying to the vice chancellor, by petition, to direct the committee to make such deduction from the bond and mortgage as might be just and equitable, under the circumstances of the case. But the objection that the complainant had adopted the more expensive course of a proceeding by bill, instead of making a summary application to the vice chancellor, by petition, might have been a good ground for refusing him his costs in the suit; if he had succeeded in obtaining a deduction from the amount claimed to be due upon the bond and mortgage.
The application for the injunction must be denied with $12
