The Lansing state Republican. [volume] (Lansing, Mich.) 1855-1874, 1859-07-12

.Loseph Grav1en vs. Robert Church and 9TH
ers-Appeal from decree made by Judge
Pratt. in the Calhoun Circuit in Chancery.
OPINION BY CHEIsTIANCY !.
Where. under creditors bill, in the Court Of
Chancery Of New York, a receiver was appointed,
and the debtor in pursuance Of the order Of the
Court made genera, assignment TO the receiver
of all his property, reciting in it the proceedings
had in the Cause, and. the assignment was exc
cuted in due form for transfer OF an interest in
lands, under our statutes Heli, that the as
signee might file lis bill in chancery in this State,
to foreclose mortgage interest, or to enforce
right of redemption, held by the debtor, at the
time Of the assignment, in lands IN this State
In such case he files his bill not strictly in his
official character as receiver by virtue Of hs APP
pointment by the Court of New York, but as an
assignee, holding the legal interest in the pro-
perry by virtue of the assignment OF the debtor.
Our courts in such case, will notice and act upon
the recitals in the assignment, so far as to recog-
nize the complainant substantially as trustee for
the creditors in whose behalf the assignment was
made, and will assist the receiver 10 collect and
render the property available for the purposes OF
the trust, but they will not concern themselves
with any question relating to the disposition OF
the proceeds a. between him and the creditors,
nor interfere between him and the Court by
whose appointment he acts. 1t is for that Court
to hold him to his accountability for the trust
property, especially as all parties reside in that
State, and the creditors have not appealed To this
Court for any such purpose.
When the owner of mortgage on which no.
thing was TO become due for several years, as
signed the mortgage to secuse debt Of his own
to an amount less than the mortgage, and the a.
-isnmen: was upon condition that if the as,ignor
should pay his indebtedness TO the assignee on
or before the first day of MAY following, then
the assignment to be void, but If not, and the
assignee should collect on the mortgage more
than the amount of his debt interest and charges,
he should pay the oyerpius to the assignor
Heli, that under this assignment the assignOr or
those claiming under him would be entitled to
this overplus, at whatever period i'll the future II
might be collected, and that it constituted a trust
in the hands Of the assignee or any person claim
ing through him under this assignment.
An assignment Of "A mortgage Of lands for the
purpose Of securing IA debt, constitutes a mort
gage OF Il mortgage. And where the mortgage
itself was executed prior 70. the act abOlishing
eiectment by mortgages: He'd, that the assign
ors right to redeem the mortgage created by his
assignment must be placed upon the same footing
.'"t "f mortcagor OF real estate
As complainant has been rcmlSS M Tie a>sei-
ton OF his rights, and may thereby have induced
defendants, or some of them, To treat the prop
erty aS their own discharged of the lien of the
mortgage, held that he was not entitled to an ac-
count or allowance of the rents or profits Held
further that he is only entitled to the sum still
due and unpaid on the original bond and mort
gage after deductng therefrom the sum which
the mortgage wa assigned 20 secure, and that
defendants should have the option of paving the
sum due complainant aud retaining the land
Decree reversed and record RENTED with drec-
tons for a reference to commissioner, and for
a decree in accordance with this opinion.
Judge Campbell did not sit in either of the
foregoing cases, having been of counsel The
other Judges were unanimous in the decisions