Opinion
02-16-1897
BECKER et al. v. CAREY et al.
Wheaton Berault, for complainants. Wm. W. Benthal, for defendants.
Bill by John Becker and others against Mary Carey and others for partition, and for other relief.
Wheaton Berault, for complainants.
Wm. W. Benthal, for defendants.
REED, V. C. This bill is filed to attain several objects, its primary purpose being to obtain a partition of a tract of land lying in Cumberland county. Of this land Henry Thomas Pugsley died seised, leaving a widow, Mary, who since his death has married Michael Carey, and leaving two children, Thomas Pugsley, Jr., an infant, and Edith May, who since his death has married John Becker. The bill, in addition to its prayer for a partition, also asks that a mortgage existing at the time of the death of Pugsley, Sr., as an incumbrance upon the property, may be decreed to be canceled, on the ground that it has been paid, and also asks that an account may be taken of the profits received by the widow from the land during the time she has been in possession of the premises since her husband's death, and praying also that an unrecorded deed made to Thomas Pugsley by John Hendee for the premises may be declared a valid conveyance, and may be ordered to be recorded.
I shall not stop to consider whether these several purposes can be attained in a single bill, for no objection is taken to it on the ground of multifariousness. While a court of equity can, sua sponte, take an objection upon this ground (Greenwood v. Churchill, 1 Mylne & K. 557; Veghte v. Water-Power Co., 19 N. J. Eq. 142), yet it will not do so unless the several purposes are so intermixed and discordant as to embarrass the court in the decision of the cause. Now, it is important to an advantageous sale of this property (for it is clearly nondivisible, and must be sold) that the existence or nonexistence of this incumbrance upon the property should be settled before the occurrence of a sale.
First, then, the parties are entitled to a partition, and, as the property is of a character which renders it not capable of an advantageous division, there will be a decree that it be sold.
Second, in respect to the existence of a mortgage as a present incumbrance upon the property: Upon this point the insistence of the complainants is that this mortgage has been paid, and should therefore be delivered up and canceled of record. It appears in evidence that after the death of Thomas Pugsley, Sr., there was due a balance upon this mortgage of $300. The mortgagee was John Hendee, who had sold the property, to Mr. Pugsley. John Hendee having died, Eli Hendee took out letters testamentary on his estate. It further appears that Mary Carey, the widow of Thomas Pugsley, placed in the hands of Eli Hendee the sum of $300, to be applied in the payment of this mortgage. It seems clear, however, that the depositing of this money in the hands of the executor of the mortgagee was conditional; the arrangement between the widow and the executor being that, if the estate of Thomas Pugsley should be settled without suit, the deposit of this sum should be regarded as payment of the mortgage, but that, if suit should be brought involving the widow's interest in the estate, the money should be returned to the widow, and the mortgage, which had been delivered to her, should be handed back to the executor. In execution of this agreement, when this partition suit was commenced, Judge Hendee returned the money to the widow, and she returned the mortgage to him. Under these circumstances, the deposit of this money with Judge Hendee cannot be regarded as a liquidation of the mortgage debt But even if it shouldbe held that the deposit of the $300 with Judge Hendee, and the surrender of the mortgage by him to the widow, constituted an absolute payment of that instrument, it would not destroy the lien of the mortgage as against the heirs of Thomas Pugsley. She, as dowress in possession of the homestead to whom no assignment of dower had been made, had an interest in seeing that the mortgage should not be foreclosed and the property sold. She therefore stood in a position where, by payment of the amount due upon the mortgage, she became entitled to a right to legal subrogation to the position of the mortgagee. This is too clearly obvious for argument. The mortgage, therefore, in any aspect of the case, is a lien upon the property; and it is not only a lien for the amount of $300, but also for the interest due upon it up to the present time. The fact that the executor had $300 in his hands to be applied on a contingency to the payment of the mortgage, does not in the least change the position of the heirs in regard to their liability to pay interest. The mortgage is therefore a lien. It may, however, be well to call counsel's attention to what I think was a misconception entertained by all parties at the time of the trial, namely, that the property could be sold free from the incumbrance, if such incumbrance was held to exist, and that it could be paid out of the proceeds of the sale made on these partition proceedings. I find, however, that the statute makes no provision for this juncture of affairs. The partition act does provide for such a course of procedure in case of incumbrances of all kinds existing upon a separate interest of a common owner. In such case the statute provides for the sale of the property free from incumbrances upon separate interests in the property. It also, of course, provides for the sale of the property free from the lien of the widow's dower. In the absence of any contrary statutory provision, the sale of the property will pass a title to the property subject to the mortgage incumbrance. For this reason, lienholders are not, in the absence of statutory provision to the contrary, necessary parties defendant, because they cannot be affected by a sale. Freem. Cotem par. 479. It is perceived, therefore, that all that this court can do in respect to the mortgage, is to refuse to cancel it. Unless some arrangement should be made between the parties for a conveyance of the property free from the mortgage lien, and its payment out of the proceeds, it will have to be sold, however disadvantageously, subject to the mortgage incumbrance.
Third, in regard to the prayer for an accounting by the dowress of the amount of profits received by her from the property, during her possession since the death of her husband: There can be no account. It is entirely settled that a dowress in possession, until her dower is set off, is entitled to the profits of the homestead. So far as appears, there was none of the property rented by her, and therefore no rent to be accounted for. She is not only entitled to the profits, but those profits are not to be diminished by any set-off on account of interest during the time of her possession, accruing upon the mortgage. Cronley v. Cronley, 40 N. J. Eq. 30; Spinning v. Spinning, 43 N. J. Eq. 215-247, 10 Atl. 270.
Fourth, in regard to the prayer respecting the unrecorded deed: The purchaser of the property at the sale will be entitled to the possession of this muniment of title. The widow will be directed to deliver it to the master to whom the matter of the sale of this property will be hereafter referred, who will hold it for delivery to the purchaser.