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Filed 15th Febr'y 1799 Jus Clk
State of New York
In
Chancery
To the Honorable Robert R Livingston
Esquire
Chancellor of the State of New York
Humbly Complaining
Sheweth unto your honor your orators David Galbreath and Thomas Elmes
late of the City of New York in the State of New York Merchants and
Copartners in trade, trading under the joint name firm and style of
Galbreath & Elmes, that on or about the twelfth day of January in the
year one thousand seven hundred and ninety eight Andrew Mitchell of the
said City being or pretending to be seized in fee or of some other good
and sufficient Estate of Inheritance of in and to the tract or parcel of
land and premises herein after mentioned And being indebted to your
orators in the sum of tow thousand and thirty seven dollars in and by a
certain promissory note bearing date the said twelfth day of January one
thousand seven hundred and ninety eight and payable in sixty days after
its date to your orators in the name and style of their partnership To
wit Galbreath & Elmes, which said promissory note is in your orators
custody and possession and ready to be produced and ….. as this
honorable Court may direct, on order to secure the payment of the said
sum of money mentioned in the said note and propose to mortgage to your
orators the tract or parcel of land herein after mentioned and described
which the said Andrew Mitchell did affirm to your orators was free and
clear from all prior incumbrances,
And your orators further shew
unto your Honor that the said Andrew Mitchell in pursuance of his said
proposal and agreement as aforesaid by Indenture of Mortgage bearing
date the said twelfth day of January one thousand seven hundred and
ninety eight and made between the said Andrew Mitchell, by the name and
description of Andrew Mitchell of the City and State of New York
merchant and Margaret his wife of the one part and your orators by the
names and descriptions of David Galbreath and Thomas Elmes of the said
City merchants of the other part, by which Indenture of Mortgage the
said Andrew Mitchell and Margaret his wife in order to secure the
payment of the aforesaid sum of two thousand and thirty seven dollars
unto your orators according to the tenor of the before in part recited
promissory note, and of and in consideration of the sum of one dollar
lawful money of the State of New York to the said Andrew Mitchell in
hand paid by your orators, at or immediately before the ensealing and
delivery of the said Indenture of Mortgage of which the said sum of two
thousand and thirty seven dollars was really and truly due and owing
from the said Andrew Mitchell to your orators also charge and really and
truly paid to the said Andrew Mitchell did grant bargain sell aliene
release and confirm unto your orators and to their heirs and assigns
forever
All that tract or parcel of land lying in the town of
Whitehall County of Washington and State of New York aforesaid and
bounded as follows viz. Beginning at a beach tree marked on the West
side of the waters running from Wood Creek into Lake Champlain about a
mile South of the narrows so called between a place called by the name
of Bold Spring and White Hale Landing and running to the West one
hundred and sixty chains, thence South one hundred and sixty chains,
then East one hundred and thirty chains, to the said waters, and thence
Southerly down along the same as it turns and winds to the place of
beginning, containing two thousand one hundred and seventy acres,
Together with all and singular the hereditaments and appurtenances to
the same belonging or appertaining and the reversion and reversions,
remainder and remainders, rents, issues & services thereof and all the
state, right, title, interest, property, claim and demand at law and in
equity of the said Andrew Mitchell and Margaret his wife, and each of
them in and to the same To have and to hold the said tract or parcel of
land and premises unto your orators, to the only proper use benefit and
behoof of your orators their heirs and assigns forever.
Subject
nevertheless to a proviso or condition in the said Indenture of Mortgage
contained for redemption if the said Andrew Mitchell his heirs executors
or administrators or any of them should well and truly pay or cause to
be paid unto your orators their heirs executors administrators and
assigns the said sum of tow thousand and thirty seven dollars in
discharge of the said part recited note as the same should become due
and payable and to secure the payment of which the said Indenture was
intended to operate as a mortgage - And the said Andrew Mitchell did in
and by the said Indenture of Mortgage in case of default should be made
in the payment of the said promissory note in the time limited therein
for the payment thereof as aforesaid, authorize and empower your orators
their heirs and assigns at any time after such default, to sell the
aforesaid tract or parcel of land and premises in fee simple at public
auction or vendue agreeably to an Act of the Legislature of the State of
New York entitled "An Act to prevent frauds by mortgages and for
securing the purchases of mortgaged estates" passed the 26th of February
1788, And to give a good and sufficient Deed and conveyance therefore;
and out of monies arising from such sale to retain the sum of two
thousand and thirty seven dollars and interest thereon from the time of
such default, together with the costs and charges of such sale rendering
the overplus money if any to the said Andrew Mitchell his executors,
administrators and assigns as in and by the said Indenture of Mortgage
duly executed by the said Andrew Mitchell and Margaret his wife and
acknowledged and proved before James M Hughes one of the Masters of
Chancery of the State of New York registered in the office of the Clerk
of the County of Washington in Liber B of the Mortgages page 281 & 292
the 4th day of March 1798, in your orators custody and ready to be
produced to this Honorable Court reference being thereunto had will more
fully and at large appear And to which when produced as this Honorable
Court may direct your orators for greater certainty refer themselves
and your orators further shew unto your Honor that the said Andrew
Mitchell some time after the execution of the said Indenture of Mortgage
before mentioned …. on or about the twentieth day of January in the year
one thousand seven hundred and ninety eight being in embarrassed
circumstances, did, by Deed under the hands and Seals of the said Andrew
Mitchell and Margaret his wife for considerations in the said Deed
expressed, grant, bargain, sell, convey and assign all the estate real
and personal, both in law and equity, in possession, reversion or
remainder of him the said Andrew Mitchell to Robert Lenox Hay Stevenson
and John Taylor as Trustees for certain purposes in the said Instrument
of assignment mentioned
And your orators further your honor that
the whole of the aforesaid sum of two thousand and thirty seven dollars
with all the interest that has accrued remains wholly due and unpaid,
And that the aforesaid mortgaged premises is a very slender and
insufficient security for the payment of the same. And your orators well
hoped that the said Andrew Mitchell Robert Lenox Hay Stevenson and John
Taylor, well knowing the premises would have either paid the aforesaid
sum of two thousand and thirty seven dollars with the interest that has
accrued thereon, or would have suffered your orators to enter into the
said mortgaged premises and peaceably and quietly to hold and enjoy the
same
And your orators for the purpose have frequently and in a
friendly manner applied to the said Andrew Mitchell, Robert Lenox, Hay
Stevenson and John Taylor and requested them to pay to your orators the
said principal sum of two thousand and thirty seven dollars and also all
interest which hath accrued thereon, or else quietly and peaceably to
deliver up possession of the said mortgaged premises to your orators,
and for the said Robert Lenox, Hay Stevenson and John Taylor to release
all right title and equity of redemption …………………………………… and John Taylor
well knowing as your orators charge the truth to be that the said
mortgaged premises are a very slender and insufficient security for the
said principal sum and interest due thereon to your orators as aforesaid
And your orators well hoped that such reasonable request would have
been complied with but now so it is may it please your Honor, that the
said Andrew Mitchell Robert Lenox Hay Stevenson and John Taylor
combining and confederating themselves, to and with divers other persons
to your orators unknown, whose names when discovered your orators pray
may be herein inserted with apt words to charge them as parties hereto,
now to injure and aggrieve your orators, and to defraud them out of the
principal and interest money due to them as aforesaid, sometimes pretend
that the said Andrew Mitchell and Margaret his wife, did not make and
execute the Indenture of Mortgage to your orators as set forth, and at
other times pretend and give out in speeches that if any such Indenture
was made form the said Andrew Mitchell and Margaret his wife to your
orators that the same was made and executed after the day of the date of
the grant and assignment made by the Andrew Mitchell and Margaret his
wife, to them the said Robert Lenox, Hay Stevenson and John Taylor as
trustees as aforesaid, whereas your orators charge that the said
Indenture of Mortgage was really made and executed on the day for that
purpose before mentioned, all which actings and doings of the said
Andrew Mitchell Robert Lenox, Hay Stevenson and John Taylor are contrary
to equity and good conscience, and tend to the manifest injury of your
orators.
In tender consideration whereof, and for as much
as your orators are remediless and cannot foreclose the equity of
redemption of the said mortgaged premises, but in a Court of Equity
where matters of this nature are properly cognizable, To the end
therefore that the said Andrew Mitchell Robert Lenox, Hay Stevenson and
John Taylor and their confederates when discovered may upon their
several and respective corporal oaths, true full and perfect answers
make, to all and singular the premises as fully and amply as if the same
were here again repeated, and they thereto particular by interrogation
according to their respective knowledge, information of belief
And the said Andrew
Mitchell Robert Lenox, Hay Stevenson and John Taylor may be decreed to
pay and satisfy to your orators the said sum of two thousand and thrity
seven dollars, and all the interest that has accrued and may accrue
thereon, by a short day to be appointed by this Honorable Court,
together with your orators reasonable costs and charges, and in default
thereof that the said Andrew Mitchell, Robert Lenox, Hay Stevenson and
John Taylor and all persons claiming under them or either of them may be
foreclosed of and from all equity of redemption or claim in and to the
said mortgaged premises and every part and parcel thereof, and that the
same may be decreed to be sold to satisfy to your orators the said sum
of two thousand and thirty seven dollars with the interest due thereon
together with your orators costs, and that your orators may have such
further and other relief in the premises as to your Honor shall seem
meet and be agreeable to equity and good conscience
May it please
your Honor to grant unto your orators the peoples most gracious writ of
subpoena to be directed to the said Andrew Mitchell Robert Lenox, Hay
Stevenson and John Taylor thereby commanding them on a certain day and
under a certain pain therein to be inserted personally to be and appear
before this Honorable Court, then and there to answer the premises, And
to stand to and abide such order and decree as to your Honor shall seem
agreeable to equity and good conscience.
And your orators will ever
pray etc.
John Kuse sol's
L Boyd of Counsel
For Compl'
Chancery Court Records - BM 22 G
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