Rathbone v. Clark

9 Paige Ch. 648, 1842 N.Y. LEXIS 614, 1842 N.Y. Misc. LEXIS 41

Opinion

The Chancellor

said, he could not upon the answer of one defendant, and without notice to other defendants, who owned different portions of the mortgaged premises, settle the order of sale by the master. That the proper decree in such a case, where the rights of the defendants were not set out in the bill and the complainants’ right to a foreclosure was not questioned, was to direct the master to sell the mortgaged premises in the inverse order of the alienation of the several parcels, and according to equity as between the several defendants; leaving the master to settle the order of sale upon the principles ©f equity. That where tenants in common mortgaged for a joint debt due from both, for the payment of which debt both were equally liable as between themselves, and after-wards made partition and aliened their several shares in different parcels, the share of the premises set off to each was chargeable primarily with one half of the debt and costs ; and should be sold to raise that half in the inverse ©rder of the alienation of the several portions thereof.

Decree accordingly.