The New York herald., 1877-07-06
THE STOKES OIL WORKS.
JUSTICE GILBERT REMOVES THE OBSTACLES tt

JUSTICE GILBERT REMOVES THE OBSTACLES TO
THE COMPLETION OF THE SALE.
Justice Gilbert rendered decision yesterday, in
the Kings County Supreme Court In tho matter OF the
application Of Jabez Bostwck l. Co., to- make per-
manent a temporary injunction restraining Cassius
Reed, Edward S. Stokes and Mrs. Nancy Stokes from
entering into possession OF the Newtown OIL Works,
which leased by the plaintiffs. Tho Court
decided there was no ground on which the action
could be maintained. The interests acquired
by the plaintiffs in the premises acquired
tenants Of MrA Stokes and after tho mortgage to Mr.
Reed made 1t was no concern Of tho plaintiffs
whether Mrs. Stokes title absolute one not
Tho Court dismissed the injunction. The property
involved was bought by Mr.. Reed for $120, 900,
and was originally owned by Edward s. Stokes.
who transferred 1t to his mother Mrs. Stokes mort
gagged it to Mr.. Reed who foreclosed the mortgage.
and at the sale bought in the property. In the
tions Just decided Mr. Franklin Bartlett appeared for
Mr. Reed with Mr.. w. O. Bartlett and Mr.. w. Bartlett,
OF counsel the Messrs Bostwick represented by
Mr.. j. X Hill and Mr. J. NJ. Van Cott, OF cou0seL Be-
low is the text OF Justice Gilberts decisiop:-
JUSTICE GILBERr's DECISION.
l am unable 10 discover any ground on which this
action can be maintained. Tho judgment regularly
obtained The plaintiffs acquired all the interest they
claim in the mortgaged premises as tenants Of Mrs
Stokes aftor the mortgage made II IL concern
OF theirs whether her title Is an absolute one or Is held
by her as security merely or upon trust tor her SON
itors tenant cannot dispute his lapdlord's
with any show Of reason ask tor relief against tie
judgment Of foreclosure and the sale hereunder s
that of fraud and conspiracy. But relief that
ground If it could had all could be attained only
by means OF motion the foreclosure suit ITSELF
There is no precedent Of separate action to snnul
Fraud which vtiates judgment is that which
operates directly In procuring IT. AS was said in tho
Hnxv fatn
trials sit may be shown that the Court
misled, but it IS not permitted to be shown that II
was mistaken" The judgment is conclusive as 10 all
matters which were might have been tIgated, not
whstanding the existence OF facts which would have
defeated recovery, or the witnesses W.T. On whose ses
which due investigation might be ascertained TO be
without foundation IS not the Kind OF fraud which will
vitiate judgment lstory Eq. Jur sec 1881 sl seq.
nrmed in Court Of AppeaIs.) But the fraud
alleged is explicitly and fully denied So
lar as appears Sr Reed was bond dde purchaser
Of the mortgage, and subsequently became the pur-
chaser OF the mortgaged promises in good faith He
entitled to protection such. No unairnoss
prise Is alleged The defendants might have defended
The iorecoure suit, but deliberately absained from
dong so, on tho ground that they had no defence.
think II was sufficient to mako Jabez A. Bostwick
alone party TO the foreclosure suit. The lease
only, therefore, took the legal estate, bu, it
was clothed with trust Tor the partnership.
Sea Of bi9 ps was .ha Of que
trust, which did not enttle him to be mado party.
The making Of Mr. Ponch party did no more harm
than good. No doubt the partner Of Jobez Is bound
for the rent (Scc Seld, $780, CONS, l49), but
personal claim made against the partnership the
suit TO the partner Affected only the estate IN the
land created by the lease, and that have seen,
was vested in the partner named therein.
According to the OF Skdmore VS.. Clarkson, 46
New York, 2g7, the plaintiffs may be entitled to some
relief by way reaching the surplus arising upon the
SALE II appears to be undsputod that the sum for
which Mr. Reed Is 10 give mortgage 10 Mrs. Stokes
is u surplus. That being tho plaintiffs should
be protected in their CLAIM upon that. Mr..
Reed, however has no interest that question.
The plaintiffs complain that mortgage instead
OF cash Is TO be gwen for that surplus. But tho
upon notice them and they inerposed objection
to Indeed, their amended complaint states that It
made with their consent The order within
the jurisdiction ol the court and the proprety OF 1t
cannot be questioned IN collateral action. Nor
deprive tho purchaser OF the foreclosure sale OF the full
dominion OF the property purchased because II wiz
subject the plaintiffs 10 loss, great small deprive
them OF the possession OF the property Their lease
peing junior the mortgage Is necessarily Of by
the sale, II cannot be continued force any
length Of without frustrating the sale pro tanto
omittng 10 defend tender the mortgage debt or
TO bid the sale, have permitted the property DO
sold and they seek tho aid OF the enable
them to continue In the possession OF another mans
property against his will That aid be afforded
upon any grounds stated here.
Order will be prepared which will remove obsta-
clos tho completion Of the sale, and afford protoc-
tion to the plaintiffs in regard TO the surplus and they
will be settled III two days notice.
The defendants must obey the order Tor their exam
ination. but the foregoing views afford sufficient
far fuqtp N etuv