Opinion
Argued May 26th, 1942.
Decided September 18th, 1942.
Since the sum realized from the sale of chattels was insufficient to satisfy the installment concededly in default when the foreclosure proceeding was instituted, there is no ground for equitable interposition on the ground that sale was had for entire principal sum. A sale of only part of the mortgaged chattels to satisfy the debt due was not practicable.
On appeal from a final decree in Chancery advised by Vice-Chancellor Bigelow, whose opinion is reported in 131 N.J. Eq. 290.
Mr. Robert S. Hartgrove, for the appellant.
Mr. Oliver Randolph ( Mr. Robert Queen, of counsel), for the respondent.
The primary question at issue is the validity of a sale of chattels in foreclosure of a mortgage. The debt thereby secured was payable in monthly installments of $50, with interest. Only the first installment was in default when the bailiff posted the notices of sale, but the next two succeeding installments became in arrears before the sale was held. The contention is that "the sale was made for the entire principal sum," and was therefore "premature and illegal," since the mortgage did not contain an acceleration clause. Respondent reads the condition of the mortgage differently, and maintains that default in the payment of a stipulated installment matured the whole principal. But, for a reason to be presently stated, there is no occasion to consider the point.
The sale of the goods yielded but $50, a sum not sufficient, after the payment of the expenses of sale, to satisfy the installment concededly in default when the foreclosure proceeding was instituted, and there is therefore no ground for equitable interposition. The right to foreclose the mortgage for the recovery of the amount in default is indisputable. The Pennsylvania Company for Insurance on Lives and Granting Annuities v. Broadway-Stevens Co., 105 N.J. Eq. 494; McFadden v. Mays Landing and Egg Harbor City Railroad Co., 49 N.J. Eq. 176; Van Doren v. Dickerson, 33 N.J. Eq. 388; Bird v. Davis, 14 N.J. Eq. 467. And in view of the sum realized from the sale, it cannot be said that it was practicable to satisfy the debt due by a sale of a portion of the mortgaged chattels.
We concur in the conclusions of the learned Vice-Chancellor on the remaining questions argued.
Decree affirmed.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, JJ. 13.
For reversal — None.