Burchard v. Phillips

4 Sarat. Ch. Sent. 20

• Court: Saratoga Chancery Court
• Decided: May 7, 1844
• Status: Published

Opinion

Decided in 'this case that so long-as the surplus moneys in .a foreclosure . . ~ , . ,, , suit remain m court it is competent lonthe chancellor, to •in an incumbrancer to assert his claim thereto, where the •equity of the ease is with him and his neglect to file his claim •in due seasonis satisfactorily accounted for. And that where the surplus moneys have been paid out of court'Under an or•der irregularly obtained,(the court has jurisdiction, by a sum•mary proceeding, to compel a party who has obtained possession thereof improperly and without its authority, to restore the same. But that after the court has lost its control •over the surplus moneys, by a payment thereof to a claimant, ¡under an order regularly entered, it is too late for another .claimant to apply for summary relief in respect to such moneys.

Surplus moneys, when to be ap*

Order appealed from affirmed with costs.