Pattison v. Powers

4 Paige Ch. 549, 1834 N.Y. LEXIS 330, 1834 N.Y. Misc. LEXIS 86

• Court: New York Court of Chancery
• Decided: August 27, 1834
• Status: Published

Opinion

The Chancellor,

after ascertaining the facts set forth in the bill, refused to make a decree for a foreclosure and sale of the mortgaged premises; as the complainant had not exhausted his remedy at law upon the judgment against H. Powers, previous to the commencement of this suit. He said the statute was imperative, that where any judgment at law had been obtained for the monies demanded by a bill of foreclosure, or for any part thereof, no proceedings should be had in the foreclosure suit, unless the sheriff should have returned to an execution issued upon such judgment, that the defendant therein had no property to satisfy the same, except the mortgaged premises. (2 R. S. 192, § 156.) That the provisions of the statute were general, and were not limited to proceedings at law and judgments recovered against the original mortgagors, upon the bonds or other collateral securities given by them for the payment of the mortgage monies. That the complainant, in a bill of foreclosure should aver, or state, in the terms of the statute, that no proceedings have been had at law for the recovery of the debt secured by the mortgage, or any part thereof; or if proceedings at law had been instituted, the bill should state what such proceedings were, and against whom instituted. And that it should also show that such proceedings at law had been discontinued, or that the complainant’s remedy at law had been exhausted, by the return of the execution unsatisfied, for want of property whereon to levy.