Trowbridge v. Harleston

The plea of Harleston must be overruled. The foreclosure of the mortgage on the Cook farm, is not a condition precedent to the foreclosure of the mortgage on the Robert farm.

A specific execution of the agreement of August 31st, 1839, would not now be decreed; the extension of credit which Harleston was to have under it having already expired. By the agreement of September 2d, 1839, Harleston was to have sixty days from that time, to perform the agreement made in August; and the plea does not aver a readiness to perform within the sixty days, and notice thereof to complainants, or the bank.

Ogden’s plea stands on different ground. It alleges the Cook farm is valuable, and will bring enough to pay the principal part of complainants’ mortgage on the Robert farm, over and above all other debts the complainants or bank have against Harleston; and that the Robert farm is insufficient to satisfy both his and complainants’ mortgage. The plea must, therefore, be allowed, on the equitable *186ground that, where two persons have a lien on the same piece of property, which is not sufficient to satisfy both, and one of them has also a lien for his debt on another piece of property, he must exhaust his lien on the latter, before he resorts to the property on which both have a lien. HopTc. R. 460. Harleston is insolvent.