Mayer vs. Salisbury and others

Mayer vs. Salisbury and others. Where a prior incumbrancer is obliged to appear in a foreclosure suit, in order to protect his rights, he is entitled to the necessary costs of his appearance; to be first paid out of the proceeds of the sale under the decree. The bill in this case was filed to foreclose a mortgage; and the defendant Packard had a lien upon the premises as a purchaser at a tax sale, the time for redemption not having yet expired ; which lien overreached, and was entitled to priority over, the complainant’s mortgage. J. Rhoades, for the defendant Packard, asked for his costs of appearing to protect his prior lien. J. J. Hill, for the complainant. [MAJORITY — The Chancellor] The Chancellor said that where a prior incumbrancer was made a defendant, in a foreclosure suit, he was entitled to his costs of appearing to protect his rights : and that the necessary costs incurred by him for that purpose should be first paid out of the proceeds of the sale of the mortgaged premises. Decree accordingly.