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Hays et al. v. Thomae

Court of Appeals of the State of New York
May 26, 1874
56 N.Y. 521 (N.Y. 1874)

Opinion

Argued April 22, 1874

Decided May 26, 1874

George H. Forster for the appellant. John R. Dos Passos for the respondents.


We think that this action was unnecessary. The decree made and entered before the death of the mortgagors could be executed notwithstanding their death, and binds all persons claiming any interest under them. It is to be enforced only by a sale of their interest in the property. No part of it is to be enforced in personam. The case of Harrison v. Simons (3 Edw. Ch. R., 394) is in point, and was, we think, correctly decided. There the death took place before enrollment of the decree. The court held that the death did not prevent the enrollment, and consequently did not prevent the execution of the decree, and denied the application to revive, as unnecessary.

The court below should have dismissed the complaint, and, under the circumstances of the case, it would have been proper to dismiss it without costs.

The judgment should be reversed, and the complaint dismissed without costs to either party in the court below, but with costs to the appellant of the appeal to this court.

All concur.

Judgment accordingly.


Summaries of

Hays et al. v. Thomae

Court of Appeals of the State of New York
May 26, 1874
56 N.Y. 521 (N.Y. 1874)
Case details for

Hays et al. v. Thomae

Case Details

Full title:WILLIAM H. HAYS et al., Respondents, v . MARIA H. THOMAE, impleaded, etc.…

Court:Court of Appeals of the State of New York

Date published: May 26, 1874

Citations

56 N.Y. 521 (N.Y. 1874)

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