1 Paige Ch. 284 | New York Court of Chancery | 1828
The Chancellor :—Whether this court can decree a sale of the mortgaged premises without the consent of these defendants, for the purpose of satisfying all the incumbrances out of the proceeds of such sale, according to their order of priority, is a question not properly presented by the demurrer. The proper object of a demurrer is to pre
In this case, the relief demurred to is not specifically claimed by the bill. The prayer for relief is in a double alternative; and if the complainants are entitled to either of the three kinds of relief thus asked for, the defendants cannot demur, but may, at the hearing, insist that the complainants be confined to such relief only as they may be entitled to under all the circumstances of the case as then presented.
The usual decree in cases of this kind in England, where strict foreclosures are still in use, is that the complainants be permitted to redeem the prior incumbrances, and that the junior incumbrancers redeem in course or be foreclosed. By our practice, sales are substituted for strict foreclosures; and if the complainants are not entitled to a decree to sell the whole estate, and pay the prior incumbrancers out of the same, they are at least entitled to redeem, and then sell the whole estate for the purpose of obtaining the redemption money, as well as to satisfy their own incumbrances. And if the prior mortgagees will not consent to a sale, or the amount of their incumbrances is not yet due, I do not,
This demurrer to one of the three alternatives in the complainants’ prayer for relief is therefore improperly taken, and must be overruled with costs.