The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-03

VAL s Comst, Bi7J
7. The order sppealsd from should DO affirmed with
costs.
Common Plcss-Special Term.
Decision BY Hon. Juugs DAILY.
IMPORTANT TO M0RrG AGNES AND EECEIvERa
MARtH l.-Joseph II. Gould u.s. John NeIson-Tnsre IL,
perhaps, valid objection to appostipg mortgage
Such have been
Oh 1895 but this shows that would be better to
appoint party entirely disintsrsstsa, that mort
clearly for the benefit Of the estate The sppontmsn Of
Robbins, ,hs mortgages appears % have been with the
hat Va. IL tia @ mo-
having priority over al other nous branoss and could
not BE- expected or required that he should, In the
inpsir his security Barney Sswe Sac. ADD
Walk. e47; Bryan W. Cemack, Cox. 422 He was
while consistent With . due prsservation Of his
right. he should evinOe due and 70
gard for the ights q the otssr parties interested IA
claims that Re went into the possession Of the proper
~ ~ mortgages and sold IL mortgage. Even he
could ait,r bis appointment, TINS eivsst himself OF the
gage, he had no authority ~ MORTGAGE to dispose Q,
he property In the manner In which he old Hs put up
the whole Of IT 1t auction and sold 10 one lot pcr
til Of the property thus posed Of consisted Of tbs
expired term OF Horton In the premises under two leases
which had been assasd BY him BY way Of mortgage to
Robbins secuiy for IS too The assignment OF tass
leases mortgage Of In land and the mort
gsgs tsrg 10 default al that Robbins could do mort
gage ~ the srhs.t was to enter into poassioa and
dd rot redeem by the payment OF tbs debit for Il he
wished to obtain Subtraction his debt BY sss OF .hs
the direction Of the Court, or Il the mortgage CON.
and notice in III. manner pointed out BY the Sta
tute e r. s., $50, Ed) He appears to hive bsen
advice or ass been assumed upon tho .rgu
years. they might be treated Is personal properly;
and sold under the mortg'gs as such. Leases for
sons Of thu statute providing for the recording Of convey
ances, OR g., eaz Cd Ei Bat this does not convert
a III:
sndsr the general der Of the statute Of shsttes
psrty, possess.ng atipmotiity which, distinguishing
attribute Of real sstate while lacking the ndsterminat
duration sssent. to the full deantons Of that t,m eu.
personal sppertan to the div sioa Of thiDgsreA stph
LOm e6) The leases in question subject like real
:. g. and Gas, las, ga though. As At common Las
the ssehod property would pas 20 hs executor ana not
70 the s' M a,1ss e
duration, Is or'gsge Of interest in land essentially
dhtin :shabe from mortgage upon psrsona propsrty
Mellon that after his appointment Robbins won't
to the saloon called one OF the clerk read to him
ss SIasf a5sns oa u' as rye s
clerk n posses son a,st for the properly described
the mortgage and sitter b. virtue o.; his appoint
belonging Nelson II does ms. .ppsAr that t.srs WAS
any other property there belonging Nelson And II Ia
svten. thAt ever hirg there sbra,sd 10 Robbins
rorggs for he Of it all in the sss he claims
to have made mortgage. He does not deny reading
to the clerk the order appcaang him reosyer aud
1t Ia equally evident whAev.r nv may have concluded to
do Afterwards that he meant to- AID aid take possession
receiver II hs duty to do Wnatever may
Ss in the % sSoa Ct sDs h.
bad s.'u~sd, to 60 A o sns' AID s.is possession
sistept with the nature OF tbs duty ke asd
tertaken to Perform to defer It's exercise uatD he had
obtairsd the paJ Eent Of lis ds,s By proceeding sgsu
receiver would rot have prevented bis ootnng sas
fac ion Of his debt BY sis Of the property "a cou
out In inc sshtet wey pref iciGs icaplirirs tns
security he had SO mortgage upon M propstJ or 1t
an, advantage 10 hiG, 10 continue ia the ps;on Of
espei the appointment. Having accsp.ed It, he mus
deemed to have gono into possession agent OF The
mortgage With tho rsh, to pr cssd in ei,her ca ecy
Thers be hut possession wter both characters
units IS In tfs eMs, In The person, cad
OF rceiver Hating Com. into possession liver It
was bis duty In the ART ins.are to sell ths right title
and interest Of Nescn In the property This wou have
enabled the plsin'f TO protest himself By purehaog
that interest As purchaser Gould would have sub
roaAed TO all tae rights Of Nelson, and have been
blsd tu.hy to contest he vslid Of the unt due
upon tie recond mortgage xhsb Tow In litigation be
tween Nelson and Edg.rton. lie cauM have paid on
Robbins mortgage which undisputed and that
Fegr IL 1t was prior equity, and with tbs advantages of
party in posssiscn have disputed the s. 600 mortgage
Robbins c.uh not Saew moreover, but that othr ssr
ties ght have been willing to give som ,,h ng Tor Nj,
cons interest," rest, and y ANYTHING had ossn obtained
As purchaser ~ the sale that was maze
Gould would not have haa the same advautages fer he
pay the whole OF the purchase money which would have
passed into the hands Of Robbn to b paid BY him into
court After the Payment Of hi. own claims subject to
their priority sale Il Nelson's interest Afterwards
Sond not have pcsd Gould Ia good position Is II It
had been sold In the arst instarcs dpostion Of this
whts OF the property to Edgerton tsriay changed the
position OF the parties From the In which the,
sale was made 1t wond not bar the equity Of redemption
~ to the household interest which might PASS TO ula
IS purchaser brit 80 respects the rest of the property
Edgerton, - purchaser under mortgage SALE would 40
Pierce IL Wend el) Idoubt II thers Wa suy stte m az
on tbs part Of Edgsrton Of Gould to oom
ton y the s,s but the sale was an irregular act the
ra OF the receiver and shoud for that reason BE- set
aside The .recsvsr VIII BE- directed in the nrst Ia
stance 10 ssll the right title and Interest Of Mel
may. proceed tAs safer 10 mako an absoluts sals
OF the who'll property In such manner ~ to bar
the equity leaving the parties In interest
pursue their remedies In respsot to any that
may be over, After the satisfaction Of his claim or the
parties agree upon any other different mode of dis.
sbns upon the sails an order IL conformity 70 tn cir
agreement may DO entered. There Is no objection
70 this apslieasion being made to the Court b.
asesrtirg 70 the practice in equity BY . receiver,
under creditors BILL after dserss ia wbioa case ii was
irrssnIsry made. su. su binary spssson M 70 s.t il
sfe asd for new sale might b made the Court pom
motion ne p'ocsediIg. to execution,
than 4 creditors BILL and whore ample relief be
Afforded y motion and al parties 70 be Affected
served with notice OF thu motion there no for
bringing on actions, which dato.y as well a. more
expensive.
Before JudSs Inyrshsm.
MARCH - Jdmes W. Ssp1ge " The FirrHrs Fire Infu.
rance Company This CASE which published in oar H.
sue Of the 2Sk bias been before the court ever sinee
1t Will be remembered that tho action was brought o,
pol Of nsuraace for 81 76O aud the defenos sst VAS
fraud over valuation Of the property insured which,
By special stipulation In the policy ITSELF nuf ID tbs
contract The court charged that there eviisn:s
10 warrant an impuasion Of arson against GoddAy he
ecouFsnt OF premises burnt who had agsped to plso
tR) Tne allegation that the policy vitiatsd the
ground OF fraud was divided into two branches The
proof OF one-hat Of the alteration OF the invoese-
rested scey ON the evidence Of the crk called the
part OF the plaintiff. II hs testimony rps, tbs de-
fence must be sustained. Hts evidence seemed TO bs
drawn from him unwilsgy, and he positiveIy
nadiced By Gooddsy Whether be WAS worthy OF credit
was point for The jury to determine Al to the alleged
removal OF the gcocs eaved from tbs FIRE After 1t took
paes was Gone for the purpose Of sssenipg the stock