
    Hulfish vs. O’Brien.
    1. A defect of title to mortgaged premises conveyed by the mortgagee is no defence in a suit for the foreclosure of a mortgage for part of the consideration.
    2. Such defence is a proper subject of exception, for impertinence.
    This cause came on upon exceptions to the report of a master, which sustained exceptions taken to the answer of the defendant. The bill was to foreclose a mortgage. The answer stated that the mortgage was given at the purchase of the mortgaged premises which were conveyed by deed, with full covenants, and was part of the consideration money, and that the title conveyed was defective; that the complainant only owned and conveyed three fifths of the premises. To this part of the answer exceptions were filed as being impertinent. The answer did not allege any eviction or suit under the adverse title.
    
      Mr. Gifford, for complainant.
    
      Mr. T. G. Lytle, for defendant.
   The Chancellor.

It has been decided in this court repeatedly, by three of my predecessors, that a defect of title to mortgaged premises conveyed by the mortgagee, is no defence in a suit for the foreclosure of a mortgage for part of the consideration. 'Chancellor Vroom so held, in Harrison v. Marselis, Saxt. 426; Chancellor Pennington, in Van Waggoner v. McEwen, 1 Green's C. R. 412, and Chancellor Williamson, in Glenn’s Admr's v. Whipple, 1 Beasley 50. Such has been the uniform doctrine of this court, and it is in accord with the decisions of other states. Davison v. De Freest, 3 Sandf. C. R. 456; Miller v. Avery, 4 Barb. C. R. 582; Bumpus v. Platner, 1 J. C. R. 218; Withers v. Morrell, 3 Edw. 560; Tallmadge v. Wallis, 25 Wend. 107. And it is fully adopted by the Court of Errors, in New York, in Edwards v. Bodine, 26 Wend. 109, on an appeal in a foreclosure case.

The exceptions to the master’s report must be overruled.  