| Notes |
- Orson is the son of Rebecca Andrews & Caleb Hough, Sr, 6 23 1782 Barkhamsted, Conn - 6 8 1836, Potsdam, NY. Caleb Hough seres as a private in Capt Cook's company, Col. Wooster's 1st Connecticut Regiment & in Wadsworth Brigade.
. 1816 Mar 14 - Potsdam Gazette: Caleb Hough Esq. of this village, Corner who took the inquisition of the dead bodies of a murder & Robbery.
. 1846 Dec 21, Monday. Hough & Others Vs. Doyle
[SUMMARY:} - By the statute of 1831, a bill of foreclosure, &c. (the mortgage-debt being DOYLE- payable by installments) would not lie, until the day of payment of the last installment was past.
- A decree in chancery cannot be rendered against an infant defendant without proof, though the answer, filed by his guardian ad litem, admit the bill to be true.
- Process should be served on infant defendants in chancery in the same manner as if they were adults; & to enable them to plead, answer, or demur, a guardian ad litem for them should be appointed. A decree in chancery against infant defendants, without proof of the matters alleged in the bill, is erroneous.
- A bill in chancery to enforce a vendor’s lien on real estate should fully describe the contract of sale, & over the non-payment of tho purchase-money.
ERROR to the Jefferson Circuit Court.
DEWEY, J . - At the September term, 1833, of the Jefferson Circuit Court, Doyle brought a bill in equity against the plaintiffs in error, the heirs at law of Orson E. Hough. The bill states that, on the 25th of October, 1831, Orson E. Hough was indebted to the complainant in the sum of $375, for which he executed three promissory notes of that date for $125 each, payable in one, 2, & 3 years, with interest; that to secure the payment of the notes, he executed a mortgage of the same date to the complainant of ' certain premises, which mortgage is referred to as an exhibit & made a part of the bill, but which does not appear in the record; that the mortgagor died in 1832, leaving the defendants below his heirs at law, who were all minors; & that the first 2 notes were due. The prayer of the bill was, that the defendants might be decreed to pay the 2 notes which were due; or in default thereof, that the mortgaged premises might be decreed to be sold, &c. The defendants having been summoned, a guardian ad litem was appointed for them, & answered the bill in their behalf admitting it to be true. The Court, without hearing any evidence whatever, decreed that the defendants should pay the complainant $288, the amount of the first two notes, in 10 days, or that in default thereof, the mortgaged premises should be sold to satisfy that sum & the costs. A commissioner was appointed to carry the decree into effect.
This decree must be reversed. The law in force when the mortgage was given, & the decree was rendered, did not authorize the bringing a bill to foreclose the equity of redemption, & for a sale of the mortgaged premises, until after the day of payment of the last of the mortgage-money was past. R. S. 1831, p. 244.
The bill was prematurely brought. It shows upon its face that the last installment was not payable when the suit was commenced.
It was erroneous, too, to decree against infants upon the Honor: admission in their answer that the bill was true. Infants cannot bind themselves by such an admission. There should have been proof adduced in the same manner as if the bill had been denied. Other errors in the proceedings might be pointed out but it is unnecessary.
Per Curiam. The decree is reversed with costs. Cause remanded.
O. H. Smith & T. L. Sullivan, for the plaintiffs.
ERROR to the Jefferson Circuit Court. - Canby brought a bill in equity against the against the heirs of Orson E. Hough on a contract of sale of a certain lot of ground, made by Orson E. Hough & the complainant. The object of the bill was to enforce the vendor’s lien. The defendants were minors. It does not appear that process was served upon them. On the filing of the bill, the Court appointed a guardian ad litem for the defendants. The guardian appeared, but did not answer. The Court for want of a defense (no evidence being adduced on either side) decreed a sale of the premises contracted to be sold, & appointed a commissioner to make the sale, &c.
This decree is erroneous. Process should have been served upon the infant defendants in the same manner as if they had been adults. To enable them to plead, answer, or demur, an assignment of a guardian was necessary. It was irregular, according to the English practice, to assign a guardian for the infants before service of process upon themselves. But we do not mean to say that, under our practice, it is essential that the service of process should precede the appointment of a guardian; the record however must show both to have been done. Such not being the fact in the cause before us, it was erroneous to proceed to a decree. It was also erroneous to decree against infants without proof of the matters alleged in the bill. It should be remarked that the bill is defective for not setting on the contract of sale with sufficient fulness, & for not averring that the purchase-money was not paid.
Per Curiam. The decree is reversed with costs. Remanded, &c. 0. II. Smith & T. L. Sullivan, for the plaintiffs.
Ref: Reports of Cases Argued & Determined in the Supreme Court of State of Indiana Nov. Term 1847.
Research & transcriptions by PJ Ahlberg. Thank you. - - -
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1794 - 1832 (37 years)