Volume 200, Volume 3, Page 470 View pdf image (33K) |
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470 HIGH COURT OF CHANCERY. Neale and Luckett, filed a copy of this mortgage or assignment of the interest of Mrs. Smith therein, in this Court, and the auditor, by an account marked C, appropriated, of the pro- ceeds of sale to which Mrs. Smith was entitled, the sum of $3,286 50 to Neale and Luckett, making a rebate from the face of the assignment, of $50 39, the debt from Smith to them not having all matured, and on the 15th of November, 1850, this account was confirmed by the Court's order, so far as the assignment to Neale and Luckett, and the claims of other par- ties, against which objections had not been interposed, were concerned. The application now on the part of the petitioner, the trustee of Mrs. Smith, is, that the account 0 may be corrected, and this claim of Neale and Luckett disallowed and rejected. And this application is founded upon the following averment in the petition, " And your petitioner would further state, that not- withstanding said allowance" (meaning the allowance of the claim of Neale and Luckett, in account C), " by which said Neale and Luckett will receive, full satisfaction and payment from the interest of Mrs. Smith in said estate, they, the said Neale and Luckett, afterwards sold the property mentioned in the mortgage from Smith the husband to them," thus in effect charging, though the amount to which the sales were made is not stated, that these gentlemen, if permitted to receive the sum awarded them in the account by the auditor, will be twice paid. The answer of Neale and Luckett to the petition, states, that much of the property mortgaged by Smith to them, belonged to the estate of his father, and that the sales made of that por- tion which really belonged to him, amounted only to $500, leaving a balance due them exceeding the sum allowed them in the account of the auditor. The argument now made on the part of the petitioner is, that inasmuch aa Neale and Luckett have by their answer admitted that they surrendered to the administrator d. b. n. of the father of Smith, a portion of the property conveyed to them by the deed of Smith, they are incapable of performing that con- |
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Volume 200, Volume 3, Page 470 View pdf image (33K) |
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