ACTION to foreclose a mortgage. The mortgage, and the bond collateral thereto, were originally given by the defendant Michael Heavy, to William' McCarthy, as special guardian of certain infants, and were claimed to have been assigned to the plaintiff, by said William McCarthy, under and in pursuance of an order made in the county court of'Monroe county, by the special county judge.

The defendant Michael Heavy was the only one who appeared and answered. He, by his answer, alleged and insisted, 1. That William McCarthy, as special guardian, had no power or authority .to assign, sell or transfer the bond and mortgage set forth in the complaint, or either of them, and that by reason thereof the plaintiff, was not the owner thereof, or of the moneys due or to grow due thereon, nor was the said plaintiff* entitled to bring any action thereon. That the said bond and mortgage was executed and delivered to the said William McCarthy, as special guardian of Thomas P. McCarthy, Alice P. McCarthy and Dennis McCarthy, infants, who then were and still are under the age of twenty-one years; that at the time of the pretended order of sale of said bond and mortgage to the plaintiff, the said infants were of the ages, respectively: the said Thomas P. of the age of fourteen years, the said Alice P. of the age of about twelve years, the said Dennis about the age of ten years; that neither of the said infants joined in' said petition. That the said, pretended order of sale was granted by George W. Raw-son, Esq., special county judge for Monroe county; that the county court of Monroe county was held at that time by the Hon. Jerome Fuller, county judge for said county, and that the latter was not at that time in any way incapacitated from holding said court. 2. And the defendant, for a further and separate answer, alleged that he was not nor is he now indebted to the plaintiff on the said bond and mortgage in any sum whatever; and that there was not on the 1st day of March, 1870, nor at any time since, any sum of money due or owing on the said bond and mortgage to the said plaintiff.

The action was tried at a special term, before a justice of this court, without a jury. When the plaintiff rested, the defendant moved that the plaintiff' be nonsuited, and the complaint dismissed on the grounds:

1. That the county court had no power or jurisdiction to order the sale or assignment of the said bond and mortgage; and that said assignment was void and no title passed.

2. That the special county judge had no such power or authority. ■

3. That the Supreme Court at special term had no jurisdiction of the matter, and could not confirm said sale or assignment, nor confirm the order made by the special county judge, and that the order made at the said special term was void for want of jurisdiction.

4. That no title to the said bond and mortgage ever passed to the plaintiff, and hence he could not. maintain this action.

The court denied the motion, and the defendant’s counsel excepted.

…

Citation profile

How this case has been treated — in progress