Frost v. Frost

New York Court of Chancery

Frost v. Frost

3 Sand. Ch. 188, 1846 N.Y. LEXIS 416, 1846 N.Y. Misc. LEXIS 60

DecidedJanuary 12, 1846

StatusPublished

This text of 3 Sand. Ch. 188 (Frost v. Frost) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frost v. Frost, 3 Sand. Ch. 188, 1846 N.Y. LEXIS 416, 1846 N.Y. Misc. LEXIS 60 (N.Y. 1846).

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Opinion

The Assistant Yice-Chancellor,

said there can be no sale in divided parcels here. One of the mortgagors has no more right in the east half or the west half of the store, than the other. The complainant as second mortgagee, has no particular equity. He stands in the place of J. Frost Jr. as to Bevins’ right, in respect of that mortgage, and cannot force on a sale of B.’s half of the property to pay his first mortgage.

On the other hand, both of these parties are principal debtors, each liable to the complainant for the whole debt secured by the joint mortgage, and he has a right to compel either of them to pay the whole. So the doctrine of surety is not applicable. They joined in mortgaging the premises, and probably by that act, intended to have a sale of the whole, if any sale ever became necessary. This is the more probable, because the legal presumption as well as the proof is, that the property will not sell as well in undivided moieties as the whole would together. If they had intended a different result, they should have given separate mortgages. A mortgagor under the circumstances here disclosed, is entitled to receive his entire money, or to have a sale of the whole premises. He cannot be driven to sell an undivided half part, for the payment of half of his debt.

In regard to a decree for Bevins against his co-defendant, the latter is not represented here. He was called upon to answer the bill, and has had no opportunity to answer the claim of Bevins.

There must be the usual decree for a sale of the mortgaged [191]*191premises, and Bevins must pay the additional costs incurred by the complainant in consequence of his putting in an answer.

Decree accordingly.

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The Assistant Yice-Chancellor,

said there can be no sale in divided parcels here. One of the mortgagors has no more right in the east half or the west half of the store, than the other. The complainant as second mortgagee, has no particular equity. He stands in the place of J. Frost Jr. as to Bevins’ right, in respect of that mortgage, and cannot force on a sale of B.’s half of the property to pay his first mortgage.

On the other hand, both of these parties are principal debtors, each liable to the complainant for the whole debt secured by the joint mortgage, and he has a right to compel either of them to pay the whole. So the doctrine of surety is not applicable. They joined in mortgaging the premises, and probably by that act, intended to have a sale of the whole, if any sale ever became necessary. This is the more probable, because the legal presumption as well as the proof is, that the property will not sell as well in undivided moieties as the whole would together. If they had intended a different result, they should have given separate mortgages. A mortgagor under the circumstances here disclosed, is entitled to receive his entire money, or to have a sale of the whole premises. He cannot be driven to sell an undivided half part, for the payment of half of his debt.

In regard to a decree for Bevins against his co-defendant, the latter is not represented here. He was called upon to answer the bill, and has had no opportunity to answer the claim of Bevins.

There must be the usual decree for a sale of the mortgaged [191]*191premises, and Bevins must pay the additional costs incurred by the complainant in consequence of his putting in an answer.

Decree accordingly.

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Bluebook (online)

3 Sand. Ch. 188, 1846 N.Y. LEXIS 416, 1846 N.Y. Misc. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frost-v-frost-nychanct-1846.