Samuel Blatchford

“ The only question for consideration is whether Mrs. Mellen or Mrs. Wallach is entitled to priority of payment out of the net proceeds of the sale of the property under the decree of January 3, 1880. If Mrs. Mellen is entitled to priority, there is nothing for Mrs. Wallach; and she will have lost her interest in the property and her share of the net proceeds of its sale by Mr. Kennedy. Mr. Kennedy was authorized by the deed of trust to sell upon such terms and conditions as he might deem most for the interest of all parties concerned in the sale. ”

“ It is a first lien under the trust deed to Mr. Kennedy, which remains to be enforced for the benefit of Mrs. Mellen, the sale under that deed being, as shown, out of the way, by assent of all parties. Mrs. Mellen has never waived that claim and lien. She asserted them by taking the trust deed from Mrs. Burche, to which we see no valid objection, so far, at least, as the amount for which she had a lien at the date of Mr. Kennedy's sale is concerned, and which is the amount allowed her by the court in special term as a lien. She has asserted the same claim and lien constantly ever since. ”

“ Mrs. Mellen acquiesced in that decree by not appealing from it. On Mrs. Wallach's appeal from it, the court in general term decreed that the trustees who made the sale should require Mrs. Mellen to comply specifically with the terms of her purchase. Mrs. Wallach did not appeal from that, and so she acquiesced in it; and Mrs. Mellen, on her appeal to this court, assigns for error only the action of the general term in giving to Mrs. Wallach priority of payment. Mrs. Burche, being a party to both suits, and not appealing, is bound by the decrees. ”