3 Paige Ch. 509 | New York Court of Chancery | 1831
decided that it was unnecessary and improper to file two distinct and separate bills to foreclose these , . _ , two mortgages on the same property. That as all the subsequent incumbrancers, as well as the owners of the equity of redemption, were before the court in the first suit, the rights of all might have been provided for by a decree in that suit; or, as the executor of the first mortgagee was a party defendant in the second suit, the decree in that suit might, of course, have provided for the payment of the first mortgage out of the proceeds of the sale under the decree in that cause. That the 134th rule had expressly directed the computation of the amount due to a prior incumbrancer who was a party defendant, so that the payment of his debt and costs might be first provided for in the decree. That as the decree to be made in either of these suits would or might dispose of the whole proceeds of the mortgaged premises according to the equitable rights of the parties, the solicitor for the several complainants might now elect in which suit to take a decree for a foreclosure, sale, and distribution; but that the property of these infant defendants should not be charged with the costs of both suits.
The solicitor elected to take his decree in the last suit, and the bill in the first suit was thereupon dismissed.
See De La Vergne v. Evertson and others, 1 Paige's Rep. 181 ; and Davies v. Williams, 1 Sim. Rep. 5.