Tompkins v. Halstead

Cole, J. The principal objection relied on in support of the demurrer, is the general one, that the complaint does not state facts sufficient to constitute a cause of action. It is an ordinary complaint to foreclose a mortgage. And we cannot see but that it contains all the allegations essential to maintain the action. It is said that it is admitted in the complaint that the title to the land embraced in the mortgage given the state, had, by the commissioners’ sale, become vested in one Chester Clark, and that there should be something to avoid the effect of this admission. It is alleged, in substance, that Clark bid in the premises at that sale in trust for and for the benefit of those defendants who had purchased the property of the mortgagor subject to the incumbrances, which they, or some one of them, assumed to pay; or that such defendants bid off the same in Clark’s name, and procured the conveyance to be made to him by the proper officer of the state, merely for the purpose of cutting off the lien of the mortgage sought to be foreclosed. This clearly shows that Clark’s purchase, being for the benefit of those defendants who had assumed both mortgages, was subject to the plaintiff’s rights. Besides, the mortgage to the state only embraced one forty, and if the effect of [121] the sale under that mortgage was to bar the plaintiff’s rights to that forty, yet surely he is entitled to a foreclosure and sale of the residue of the land covered by his mortgage. Again, it is assumed that the plaintiff is seeking to enforce some undertaking or agreement made by Diana Halstead, and it is said a married woman cannot contract except with reference to her separate estate. We do not think this question is before us on this appeal. By the Court. — The order overruling the demurrer is affirmed.