Bank of Rochester v. Emerson

3 Sarat. Ch. Sent. 1

• Court: New York Court of Chancery
• Decided: February 21, 1843
• Status: Published

Opinion

Appeal from a decretal order of the vice chancellor of the eighth circuit allowing a plea. The court decided that the filing of rthe master’s report of sale in a foreclosure suit, stating the amount of the deficiency due to the complainant upon his mortgage, is not sufficient to authorise the issuing of an .execution for .such deficiency. That as the decree of foreclosure and sale of the mortgaged premises directs that the mortgagor, or other person, who is personally liable for the mortgage debt shall pay the amount of the deficiency reported due, Upon the coming in and confirmation of the report of the master, until such report is confirmed, as well as filed, the deficiency is not payable under the decree; and consequently no execution can issue against the property of the defendant previous to that time.

Plea when

That a plea is not rendered double because it sets up two facts which go to establish but one point. That to render a plea double it is necessary it should set up two good defences to the bill.

Decretal order of the vice chancellor affirmed with costs.