That the plaintiffs have applied, in a friendly manner, to the said Abraham Flagler, and requested him to pay the said promissory note, or to assign the said bond and mortgage, or otherwise reinstate the plaintiffs in their rights, in respect to their said purchase moneys, which he refuses to do.

That the said Abraham Flagler has, in form, assigned the said bond and mortgage to the said defendant, Benjamin S. Thorn, and that he, the said Benjamin S. Thorn, pretends to be the lawful holder thereof, which the plaintiffs deny, but allege the truth to be, that said assignment to the said Benjamin S. Thorn was made for the purpose of securing him, the said Benjamin S. Thorn, against any liability to pay a certain promissory note for $200, or some other sum, dated on or about the 28th day of September, 1840, and payable, in sixty days from date, at the Dutchess County Bank, drawn by the said Abraham Flagler to the order of the said Benjamin S. Thorn, which the said Benjamin S. Thorn had endorsed for the accommodation of the said Abraham Flagler, but that the said promissory note was never discounted by the said Abraham Flagler, or any other person in his behalf, nor has the same been transferred to any bona fide holder, of all which the said Benjamin S. Thorn had notice before the commencement of this action; and the plaintiffs herein and hereby offer to deliver up the said note to the said Abraham Flagler, or his order, or to bring the same into this court to be canceled, as this court shall direct.

Wherefore the plaintiffs demand judgment, that the said Benjamin S. Thorn assign and the said Tilley Morgan pay to the plaintiffs the said bond and mortgage, or that the said bond and mortgage be delivered up to be canceled on account of the fraudulent actings and doings of the said Abraham Flagler in procuring the execution of the said

bond and mortgage to him, or on account of the same being executed to him, without any consideration passing from him, or any other person in his behalf, to the plaintiffs; and in case said bond and mortgage shall be adjudged to be canceled, as last mentioned, that then it may be further adjudged that said Tilley Morgan shall pay to the plaintiffs, as the equitable mortgagees of the said lands and premises, the balance of the said purchase money, so as aforesaid due from the said Tilley Morgan, on demand, or within such time as this court shall deem fit and reasonable; or that the said premises be sold according to the course and practice of this court, on the sale of lands on the foreclosure of such mortgage; or that the said Tilley Morgan be decreed to pay to the plaintiffs the said balance of purchase moneys; or that, in default thereof, he, and all persons claiming under him, may be absolutely barred and foreclosed of and from all right and equity of redemption in and to the said mortgaged premises, and every part thereof, and may deliver up to the plaintiffs all deeds, papers and writings, in his custody or power, concerning the said mortgaged premises, or for such further, &c., [as in No. 1.]

(No. 59.)

By heir-at-law of deceased mortgagor, against mortgagee in possession, for redemption of mortgaged premises.

Title of the Cause.

The plaintiff complains of the defendant, and alleges the following facts, constituting his cause of action:

That A. B., who was the plaintiff's father, was, at the date of the execution of the mortgage hereinafter mentioned,

and continued to be to the time of his death, seized in fee simple of a certain piece or parcel of land, situated, &c., [describing the premises.]

That said A. B., being so seized, on or about the, &c., executed to the abovenamed defendant a mortgage upon said premises, for securing the repayment of the sum of $ -, with interest, then advanced by the defendant to said A. B.

That soon after the making of said security, the defendant entered into the possession of said mortgaged premises and into the receipt of the rents and profits thereof, and has ever since continued in such possession and receipt. That said A. B. departed this life on or about the, &c., intestate, leaving the plaintiff his sole heir-at-law.

That the plaintiff has applied to said defendant, since the death of said A. B., to come to an account of the rents and profits of the said premises so received by him, and to pay over to the plaintiff what he should appear so to have received beyond the amount of the principal and interest due him, and to deliver up the possession of the said mortgaged premises, but the defendant refuses, and still continues to refuse so to do.

Wherefore the plaintiff demands that an account may be taken of what, if anything, is due to the said defendant, for principal and interest on the said mortgage, and that an account may also be taken of the rents and profits of the said mortgaged premises which have been possessed or received by said defendant, or by his order, or for his use, or which, without his willful default or neglect, might have been received; and that if it shall appear that the said rents and profits have been more than sufficient to satisfy the principal and interest of the said mortgage, then that the residue may be paid over to the plaintiff, and that the plaintiff may be permitted to redeem the said

premises, he being ready and willing, and hereby offering, to pay what, if anything, shall appear to remain due in respect to the principal and interest on the said mortgage; and that the defendant may be adjudged to deliver up the possession of the said mortgaged premises to the plaintiff, or to such person as he shall direct, free from all incumbrances, made by him or by any person claiming under him, and may also deliver over to the plaintiff all deeds and writings, in his custody or power, relating to gaid mortgaged premises, or for such further, &c., [as in No. 1.]

(No. 60.)

Complaint by a junior judgment creditor, who had not been made a party to a bill of foreclosure, to redeem premises sold under a decree of foreclosure, on payment of amount due, with interest and value of permanent improvements, deducting rents and profits received.1

SUPREME COURT-ONEIDA COUNTY.

Martin Brainard
agt.

William Cooper and John E. Cooper.

The plaintiff complains of the defendants, and alleges the following facts for his cause of action:

1 This is adapted from an equity precedent in the case of Brainard v. Cooper, in which the Supreme Court, at General Term, approved the decree of the Vice-Chancellor, granting the relief claimed in the bill, with costs.

"The omission to make a creditor a party does not open the decree, but merely leaves his rights to redeem unimpaired; in other respects,

That, on or about the 18th day of August, 1832, one Charles Giles, then of Whitestown or New Hartford, in the county of Oneida and State of New-York, became and was indebted to the plaintiff in the sum of $610, and, being so indebted, the plaintiff, on the day and year aforesaid, obtained a judgment against the said Charles Giles, in the Supreme Court of the State of New-York, for the sum aforesaid and caused the same to be docketed on the day and year aforesaid, in the office of the clerk of said court, at the city of Utica, which judgment, so obtained as aforesaid, together with the lawful interest thereon from the date last aforesaid, yet remains due and unpaid, except the sum of $56.36, or thereabouts, which was paid by the said Charles Giles to the plaintiff in the summer of the year 1841.

That, on the said 18th day of August, 1832, the said Charles Giles owned and was possessed, as in fee simple, of all that certain piece or parcel of land, situated, lying

the decree is in full force. The title of the purchaser, under the mortgage sale and Master's deed, is as valid as if the deed had been executed by the mortgagor or mortgagee (2 R. S., 193, § 58); and as the redeeming party is entitled to be substituted in place of the person whose interest he discharges, he does not, by redeeming, simply remove the incumbrance so that he may enforce his own lien, but he thereby becomes vested with the estate which the person has, whose interest he discharges.

"Were it not so, it would be exceedingly unsafe to redeem. If the party does not succeed to the rights of the mortgagee or person from whom he redeems, but simply removes the incumbrances, an intermediate incumbrancer would have a right to enforce his lien against the property, without repaying to the redeeming creditor the money advanced in discharging the prior lien.

"But the rule is otherwise. The party redeeming an unforeclosed mortgage has a right to use the redeemed mortgage for the purpose of protecting himself against intermediate liens." Extract from opinion of PRATT, J., at General Term.