New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-09-13
LAW INTELLIGENCE.


John g. Wright respondent agt William Hobrook executor
&C.. appellant,
| The complaint in this case was upon prom
ssofy note made by the teststor and contained the
proper averments TO show right Of action against the
defendant The answer alleged. among other things.
that the note was given for the purchase price oil certain
lands and set forth the contract OF purchase and sale
between the plaintiff and said testator whereby the
former agreed 10 convey tho said lands to the latter on
payment OF the purchase price; also containing pro.
vision to tie effect that in case of default OF payment
the plaintiff should have the right to sell the lands at
public auction, &C. and apply tho proceeds OF the sale
20 the payment Of the note and the expense OF SALE pay
ing over any surplus there might he to the testator
1t claimed that the effect Of such agreement was
that OF equitable mortgage which should be properly
orecosed under the following provisions oil the STATUTE
&C.:
whenever any real estate. subject 10 O mortgage
executed by the ancestor or estaor shall descend 20
an heir pass TO deyisee such heir or devisee shall
satisfy or discharge such mortgage out OF his own
property without reSorng 10 the executor or admin
strstor. unless there be express direction IN the
will Of such esator that such mortgage be otherwise
paid" a. X. &, n. 7f9. sec.
The Court held that the object OF the statute was TO
change the rule Of the common law. under when thc
heir &C., had tao right to call upon the representative
OF the deccdcnt TO pay oil the mortage
That this statute does not apply to on equitable lien
growing out Of contract of purchase of real estate
And further. that where there is personal LIABILITY
by contract to which the MORTGAGE Is collateral secur
this statute docs not deprive the party OF his right
Of action upon the contract
And In Of unpaid purchase money OF real estate
personal estate OF the decedeni.
And the Judgment for the plaintiff was affirmed
George s. '0sburgh respondent sgt "hhAn D. ieAon e.
This was an action OF trespass for cutting a tree on
plaintiffs land tried in the Duchess County Court.
where the plaintiff recovered verdict for SIS. The
gnent was appealed TO the General Term where 1t
was affirmed. and then brought TO this Court.
Ia the County Court IL was claimed by the defendant
that the tree cut by him was on his own premises
according TO division line settled upon by the pares
&c.
This Court held that it is the policy Of the law to
permit parties 10 settle aud adjust doubtful uncertain
and disputed facts between themselves. aud when 80
settled upon good and sufficient consideration, not to
permit them afterward TO be brought into dispute.
That where there is a disputed indefinite or unccr-
tain boundary line between the lands OF adjoining pro-
pretors they may by p1ro or by arbitration fix upon
line between Themselves. That an agreement By paro
TO establishment new limo where the boundary was
not uncertain and indefai.e. would be void by the
statute OF Frauls. That when the disputed or uncer
tain line is fixed and adopted by tho parole agreement
by way Of transfer OF title but by way OF estoppo
Thomas l.. Brayund sgt III lloppoct
The question was whether the agreement, under
which the loan was made, was usurlous-tAdI Is
whether II was bottOmry contract.
The Court held: That an essential character OF bot
Omry that the money lent ~ the risk OF tho lender
during the voyage and that the repayment thereof.
with interest agreed upon, depends upon the termna
ton OF such voyage that where By the terms Of the
contract the money loaned is to be repaid at all haz-
ard 1t is not bottomry; for the principle and extraordi
nary interest reserved not absolutely at the risk OF
the lender by the periIs of the voyage.
That when by the terms OF the contract the borrower
assigns the lender collateral security for tho loan.
policies Of insurance upon the vessel and freight and
beside gives also bill OF sale Of the vessel 1t Is not
bOttomry
That such contract OF loan. reserving greater in.
terest than per cent per annnm Is usurous ana void
And that the money collected by tie lender on the
collateral securities thus assigned TO lin, may be re-
covered by the borrower In action brought for that
purpose
Judgment for the plaintiff.
JoEL TIFFANY. State Reporter.