Averill v. Taylor & Vernon , 5 How. Pr. 476 ( 1850 )

Cady, Justice.

The insolvency of the testator at the time of his death may be a material question in the cause, if the plaintiff shall rely at all on the bequest in the will, in his favor; for debts are to be paid before legacies (2 R. S. 90, § 44 and 45; Lupton, vs. Lupton, 2 John. Ch. Ref. 614). That part of the answer, therefore, ought not to be struck out, if it can in any event become material.

■ The next part of the answer relates to the fact that the plaintiff and his wife have conveyed a part of the premises to A. E. Smith, and the necessity of his being made a party. If it were certain that the plaintiff is entitled to have the bond and mortgage given up and cancelled, and that the defendants could not have in this suit a decree of foreclosure and for a sale of the mortgaged premises, there would be no necessity for making A. E. Smith a party; but if, upon this bill, the defendant can have a decree of foreclosure and to sell the mortgaged premises, then A. E. Smith is a necessary party. I ■ am not prepared to say whether such decree can or can not be made in a case like this; but I do not perceive any good reason against it.

The remaining matter which the plaintiff moves to have struck out consists of the defendants’ prayer. It is not possible that the plaintiff should be prejudiced by the defendants’ prayers. They do not require a reply; no issue can be taken on them; they are addressed to the court, and will not be granted unless, upon the hearing the facts and law of the case, the party be entitled to the relief prayed for.

The objection that the defendants have no right to advertise to sell the mortgaged premises by virtue of the power contained in the mortgage before having taken out letters testamentary in this state, seems to be answered by the case of Doolittle vs. Secors (7 John. Ch. Rep, 45). It may, however, be that Chancellor Kent’s opinion in that case rests, in part, upon the fact that the mortgagor suffered the sale to be made, without objection, and bona fide purchasers became interested, and that they ought to be protected. That circumstance does not exist in this case; but why should the mortgagor be allowed to object to the execution of a power which he gave? There is no suggestion in the complaint that there are any creditors of the testator in this state, who may be prejudiced by permitting the defendants to proceed with the sale. I am, therefore, of "opinion that the motion be denied with ten dollars costs, to be paid by the plaintiff to the defendants or their attorneys.