Opinion
03-09-1887
BENEDICT v. MORTIMER and others.
James Fleming, for complainant. Eugene Stevenson, for defendants.
On bill to foreclose. Strict foreclosure.
James Fleming, for complainant.
Eugene Stevenson, for defendants.
BIRD, V. C. M., being indebted to W. & B. in the sum of $4,730, gave a bond and mortgage to them to secure that amount, and "for the payment of all expenses, damages, indebtedness, liabilities, and balances" which were due or which might thereafter become due and payable to the said W. & B., or either of them. His wife joined in the mortgage. The defendant M. became indebted to others, who obtained judgments against him. He confessed a judgment to W. & B. for the amount due on the bond. On all these judgments, executions were issued, the mortgaged premises levied on, and sold to B., one of the mortgagees. Before the sale, W. & B. took an assignment of all the judgments which had been obtained by third persons. After these events, the mortgage was assigned to the complainant. It is claimed that there is a balance of about $2,700, and large arrears of interest, still due on the mortgage.
The bill is for strict foreclosure. M. and his wife are both made defendants. The prayer is that they, or one of them, may be decreed to pay the amount due, or be forever barred of all equity of redemption. Counsel for defendants insist that the complainant cannot have a strict foreclosure, and urges that the mortgagor is entitled to the benefit of sale, as under ordinary foreclosure proceedings. He says that this follows from the fact that B., one of the mortgagees, became the purchaser of the equity of redemption under the sale made by virtue of the executions upon the judgments at law, one of which was for the same debt secured by the mortgage now in suit. He says the reason is it will give the complainant a superior advantage over all other creditors, and also over the mortgagor, to allow this prayer. It seems to me that this question has been forever set to rest, upon the soundest principles, by Chancellor Green, in Eldridge v. Eldridge, 14 N. J. Eq. 195. He says: "By virtue of the mortgage and the sheriff's deed, as well the legal title as the equity of redemption of the mortgagor in the mortgaged premises was divested, and the entire legal and equitable estate vested in the mortgagee." "The equity of redemption of the widow in her dower right was not affected by the sheriff's sale, and upon her husband's death she became entitled, as doweress, to redeem the mortgage. It is to foreclose that equity that this bill is filed. The bill does not ask a sale of the mortgaged premises. The legal title, as well as the equity of redemption of the mortgagor, is already in the complainant. He only asks that the widow should redeem the mortgage, or that her equity of redemption should be foreclosed."
Let it be understood that the counsel for defendant does not pretend that the mortgage was extinguished by the confession of the judgment on the bond. It was not so intended. The mortgage was to survive, and to secure any and all indebtedness to the amount of $15,000; whereas, when the judgment was confessed, the amount due was not $7,000.
I will advise that the complainant is entitled to a decree of strict foreclosure, with costs. Let there be a reference to ascertain the amount due. The whole amount of the $15,000 is due, less the amount realized on the sale of the equity of redemption by the sheriff. The master will proceed, and report accordingly.