Bergen v. Bennett

Court for the Trial of Impeachments and Correction of Errors

Decided July 1, 1799

Court for the Trial of Impeachments and Correction of Errors · decided 1799-07-01

This was an appeal from a decision of Chancellor Lansing, permitting Bennett, the respondent, to redeem lands sold by Bergen, the appellant, at auction under a power of sale contained in the mortgage. The mortgage had been purchased by him of the original mortgagee, and he became the purchaser of the property at the sale. The respondent was the son of the mortgagor, who died in 1776, leaving the respondent, then only fifteen years of age, his oldest son and heir at law.

Decided 1799-07-01

¶1The Court of Errors reversed this decision. The opinion of the court was delivered by Kent, J. He says, “ It is admitted that a naked authority expires with the life of the person who gave it; but a power coupled with an interest is not revoked by the death of the grantor. In my opinion the power contained in the mortgage is of the latter description.” He also held, “ That the heir was barred of the right to redeem under the circumstances, having waited without any legal disability sixteen years, and only when finding it a gaining bargain, presenting himself to redeem.” The decree of the Chancellor was reversed, and the bill to redeem ordered to be dismissed with costs.