Denn ex dem. Demarest v. Wynkoop

8 Johns. 168

• Court: New York Supreme Court
• Decided: May 15, 1811
• Status: Published

Opinion

Per Curiam.

The defendant sets up a title under the mortgage, executed by Banta and his wife to GabrielLudlow, and if that mortgage interest has not been redeemed, it forms a good defence to the action. The endorsement upon the mortgage by Daniel Ludloxv, who claimed the interest under it, was no satisfaction and. discharge of the mortgage, either at law or in equity. It is very clear that it was not so intended. The land was taken for the debt, and Ludlow retained the mortgage, to secure his title, as the release of Banta alone did not secure the fee. This is the express language of the endorsement, and it would be unjust to take the land from him, or his assigns, without payment of the debt for the security of which the mortgage was created. Whether the mortgage be redeemable, or not, at this late day, is a question that belongs to the court of chancery, and not to this court to decide. The defendant is entitled to judgment.

Judgment for the defendant.