Albany Insurance v. Lansing

7 Johns. Ch. 142

• Court: New York Court of Chancery
• Decided: July 1, 1823
• Status: Published

Opinion

The Chancellor.

The 50 acres were included in the mortgage, and made subject to the election and appropriation of the mortgagor, and the grant of them was liable to be defeated by matter subsequent. Unless the lots were actually laid out, the exception did not operate to defeat or impair the grant of the entire parcel, as the whole was conveyed subject to such election and power. The election ought to be made in a reasonable time; and if not made, the exception had no operation, except as to lots then actually laid out. If the mortgagor did not avail himself of this power by the time of the commencement of the suit, he must be deemed to have waived it; for the exception extended only to such parts of the premises, not exceeding 50 acres, as had been, or should be, laid out into lots. This power was likewise reduced to the limits of 10 acres by the subsequent release, and the subsequent judgment creditor can have no right equal to that of the mortgagee, except as to the lots so laid out.

The following direction was inserted in the usual decree for the sale of the mortgaged premises :

“ That the master, previous to the sale, inquire and ascertain whether any, and if any, how many village lots, within the limits and extent prescribed in the mortgage, had been laid out by the mortgagor before the . commencement of the suit; and that he ascertain and describe those lots, which may have been so laid out, by metes and bounds; provided always, that the same, when so aseertamed, shall not include more than ten acres of land in quantity, nor include any buildings erected thereon, or any gardep grounds appurtenant thereto, and that, at the sale, the lots, if any, so ascertained and described under the above limitations, be exempted from the sale, as not covered by the mortgage, and that the Master make report of the lots he shall so describe.”