McKinstry v. Curtis

10 Paige Ch. 503

• Court: New York Court of Chancery
• Decided: January 2, 1844
• Status: Published

Opinion

The Chancellor

decided, that where the equity of redemption in mortgaged premises is sold under a judgment, or under a junior mortgage, which judgment or mortgage is a lien upon the equity of redemption merely, the legal presumption is that the purchaser only bids to the value of such equity of redemption; and that the land thus purchased is in equity the primary fund to pay the amount due upon the prior bond and mortgage. He said it would therefore be inequitable for the holder of the prior bond and mortgage, in this case, to assign the same to the complainants, to enable them to collect the amount thereof out of the property of the mortgagor, by a suit upon the bond, under the circumstances stated in their bill.

Injunction dissolved.

(a)

See Tice v. Annin, (2 John. Ch. Rep. 125;) and Heyer v. Pruyn, (7 Paige's Rep. 465.)