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4 Johns. Ch. 542

Lawrence v. Cornell

New York Court of Chancery

Decided August 8, 1820

New York Court of Chancery · decided 1820-08-08

PETITION of the plaintiff, stating a decree for the sale of mortgaged premises, lying in the city of New- York, to satisfy the mortgage debt due to the plaintiff, and a junior mortgage held by one of the defendants, and a sale thereon, by a Master, in pursuance of the decree, to William Reynolds, for 2,550 dollars. That, at the time of the sale, the .premises were represented as free and clear from all incumbrances.

Cited by 2 later decisions — most recently October 1869

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1820-08-08

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The Chancellor.

¶1The facts stated in the petition and report, remain uncontradicted. The premises, at the time of the sale, were represented “ to be free and clear from all incumbrances;” and the Master’s report contains no allega*544tion to the contrary. It, likewise, contains the evidence of the fact of such incumbrances; and the certificates show that the evidence of them came to the Master’s knowledge since the sale. The purchaser ought not to be held to his purchase, under these circumstances; and we must intend that the lot was sold, and was purchased with the understanding, that the title was clear, and the price bid is to be taken as a fair and adequate consideration for the premises, free from incumbrances. It is, therefore, just, and for the interest of all parties, that the purchaser, or the Master for him, should be at liberty to apply part of the purchase money in discharge of the incumbrances. Stretton’s case, (1 Vesey,jun. 266.) though rather an imperfect and unsatisfactory note, contains authority for this direction, as we have here, what was wanted in that case, the Master’s report of the incumbrances.

¶2I shall, accordingly, direct, that the Master, out of the proceeds of the sale, redeem the mortgaged premises from Richardson, and, also, discharge the lien of the other tax, upon the terms by which they are, by law, redeemable, and that he bring the residue of the purchase money into Court, to abide its order.

¶3Order accordingly.

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