Opinion
07-10-1897
HALL v. HOME BLDG. CO. et al.
Martin V. Bergen and Geo. J. Bergen, for complainant. John P. Harned, for defendants Elizabeth Heck and Abraham Anderson.
(Syllabus by the Court.)
Bill by Sarah Mickle Hall against the Home Building Company and others. Decree for complainant.
Martin V. Bergen and Geo. J. Bergen, for complainant.
John P. Harned, for defendants Elizabeth Heck and Abraham Anderson.
GREY, V. C. This cause came on to be heard on final hearing on bill and the answers of the defendants Elizabeth Heck and Abraham Anderson. The bill is filed to foreclose the bond and mortgage, dated December 8, 1891, made by the Home Building Company, a corporation of New Jersey, one of the defendants, to the complainant, Sarah Mickle Hall, conditioned to secure the payment of $63,800, "at any time within five years from the date thereof," with interest at 5 1/2 per cent. per annum, payable semiannually, and taxes immediately upon their assessment. The bond and mortgage contains the following proviso: "Provided, however, that during said term of five years the said company obligor, its successors or assigns, might at any time pay, on account of the said principal sum, such sum or sums of money as it or they might desire, provided that the sum of eight thousand dollars, at least, each year, should be paid on account of said principal: And provided, further, that the said obligee, her heirs, executors, administrators, and assigns, should, and they did thereby, agree, from time to time, and as often as request was made to her or them for that purpose, to release from the lien and operation of the said accompanying indenture of mortgage, for each ninety dollars of principal paid, a lot of land to be selected by the said party obligor, its successors and assigns, containing two thousand square feet of land." They also contain a provision that in case default should be made for the space of 30 days in the payment of any installment of interest, or 60 days in the payment of any annual sums of principal, or 90 days in the payment of any taxes after they become due, then the whole principal debt should, at the option of the mortgagee, become due and payable. An answer was filed by the defendant Isaac W. Budd, on which issue was joined; but, on the hearing, no one appeared for this defendant, nor was any evidence offered in his behalf.
The mortgage is a purchase-money mortgage. The mortgaged premises are situate Inthe Eighth ward of the city of Camden, and are described from a survey made on October 23, 1891, not quite two months before the execution of the mortgage. In the description in the mortgage the lands are described by their out bounds, with two excepted portions, specifically described, and are stated to contain, without the exceptions, 55.27 acres of land. Nothing in the description of the land in the mortgage indicates that the parties, at the time of making the negotiations, had before them any description or map of a subdivision of the tract into smaller portions. The defendant Abraham Anderson is the present holder of the title to two lots, part of the mortgaged premises, which are designated in his answer as lots Nos. 22 and 23 in section 5 "of said mortgaged premises," and "on said plan," and also of lot No. 36 in section 11 "on said plan." The defendant, in his answer, states that Nos. 22 and 23 on section 5 contain 3,060 square feet, and that, under the terms of the mortgage, he is entitled to a release of those lots on paying to the mortgagee complainant $138, with interest thereon from December 8, 1893. He also states that lot No. 36 in section 11 contains 1,275 square feet, and he claims that he is entitled to a release of this lot upon paying to the mortgagee complainant $57.38, with interest thereon up to the time it was paid; that on October 31, 1894, he tendered to the complainant $145.59, which he asserts is the amount which the complainant was entitled to receive for the release of lots Nos. 22 and 23 in section 5, together with interest to the time of the tender, and that the complainant refused to receive it; and that on the same day he tendered to the complainant the sum of $60.82, the amount which the complainant was entitled to receive for the release of lot No. 36 in section 11, together with interest to the time of the tender, and the complainant refused to accept it; and that at the same time he presented a release to the complainant discharging these lots from the lien of the mortgage, and requested her to execute it, which she refused to do. He states that he has at all times been ready to pay this money upon the execution of a release, and is still ready to do so, and brings the money into court for that purpose, and upon this ground claims that the abovementioned lots should be released from the operation of the mortgage. The defendant Elizabeth Heck, who is represented by the same solicitor, states that she has become the owner of lots described in her answer as lots Nos. 51, 52, 53, and 54 in section 5, as laid out on the plan of lots mentioned in the bill of complaint; that lots Nos. 52 and 53 have been released, and that lot No. 51 contains 1, 184 square feet; that the defendant Elizabeth Heck is entitled, on paying $53.50, with interest thereon, up to the time the same was tendered, to have a release of lot No. 51 from the lien of the complainant's mortgage, and that on October 31, 1894, she tendered $56.71, which was the amount complainant was entitled to receive for the release of lot No. 51, with interest then due, and that the complainant refused to receive the same; that she had also at that time tendered a release of this lot No. 51, which the complainant refused to execute; and that she has always since been ready to pay the release money, and has brought the same into court for that purpose.
The testimony in the case shows that the Home Building Company consisted of three persons, Moore, Campbell, and Taylor. Campbell was president. Moore was secretary. Taylor was manager. The company was formed for the purpose of improving the property purchased from Mrs. Hall. The manager, Mr. Taylor, was examined as a witness, and produced a "plan of lots, property of the Home Building Company," which is a map of the mortgaged premises, showing subdivisions into town lots, streets, etc. Mr. Frederick Hall, the son of the complainant, was her agent in the conduct of the business, and was a witness on the stand in the trial of this cause. The manager, Mr. Taylor, testifies that the plan was made after the purchase had been completed; that the first draft of it had been submitted to Mr. Hall, and the outline of it was shown to him before it was lithographed. He expressed satisfaction with it, and thought it was all right. The method by which the releases referred to in the bill of complaint were executed was as follows: The building company would build a house on a lot, and, if they mortgaged it or sold it, they would secure it to be released from the blanket mortgage by going to Mr. Hall (who represented his mother, the complainant), and designating, by the lot and number and section on the plan, what portion it was they wanted released. A release would then be presented, corresponding with the number of the lot on the map, and Mr. Hall would be paid, for his mother, the amount of the release money. All of the releases in the description of the lots, parts of the mortgaged premises, which were released from its lien, are designated by number and location, and in description by metes and bounds, as they are described on the map or plan which was made by the Home Building Company; and there seems to be no dispute that this map, made subsequent to the execution and delivery of the mortgage, was the plan used by the parties in the definition of the territorial bounds of the lot released from the lien of the mortgage, so far as any releases were given. The defendants Anderson and Heck are grantees of the mortgagor. The complainant's mortgage was made on December 8, 1891, and received for record on January 5, 1892. The defendant Anderson's grantor received his deed from the mortgagor, February 23, 1893, and the defendant Heck received his on March 30, 1894. Both defendants took their title long after the complainant's mortgage had been received for record.
The defendants claim that, by the interpretationof the release clause in the mortgage itself, they have a right to releases of their several tracts from the lien of the mortgage upon payments to the mortgagor at the rate of $90 for each 2,000 feet released, whether they contained exactly 2,000 square feet or fractional parts thereof. They also claim that the map produced is a plan of the lots of the mortgaged premises, which has been accepted by the mortgagee as the basis on which the lots were to be released, and that any of the lots there indicated must be released by the mortgagee when payment is made to her at the rate of $90 per 2,000 feet, whether the lot contains 2,000 feet, or a multiple, or any fractional part thereof. The clause in the mortgage providing for the release of lots declares that the mortgagee shall release, "for each $90 of principal paid, a lot of land to be selected by the said party obligor, its successors and assigns, containing two thousand square feet of land." The mortgagee by this clause does not agree to release any less quantity than 2,000 square feet, nor any greater quantity than may be contained in additional lots of 2,000 square feet each; nor to accept less than $90 as a payment. There is no declaration that the land should be released at the rate of $90 for 2,000 feet, nor that fractional parts less than 2,000 feet shall be released at any price. The clause in the mortgage distinctly declares that there shall be "a lot of land" to be selected, etc., containing 2,000 feet. Bach piece to be released must therefore have been a lot containing 2,000 feet, and not a fractional portion of the tract greater or less than 2,000 square feet, to be discharged at the rate of $90 for 2,000 feet. I cannot interpret the clause as expressed in the mortgage to give a right to the mortgagor and its grantees to secure the release of a smaller portion than 2,000 feet, or any fractional part of 2,000 feet, without violence to the expressed words and manifest meaning of the contract, by thrusting into the agreement (which is perfectly clear in itself) a term not assented to by the mortgagee.
The further claim by the defendants is that the map produced is a plan of the mortgaged premises, which the mortgagee has accepted as a basis for the release of the lots. It does not appear that the map was one prepared with the mortgage for this purpose. Nothing in the mortgage makes any reference to any plan or map, either in existence when the mortgage was made, or then in preparation or contemplation. The parol evidence shows that the map was prepared after the purchase, and, as the mortgage is a purchase-money mortgage, it must have been after the mortgage had been made; and it does not appear that, in making the map, the provision for the release of lots in the mortgage was considered. The lots are not laid out in subdivisions of 2,000 square feet. The mortgage provides only for releases of lots of 2,000 square feet each. An effort was made to show that there was a uniform proportion in the amounts paid for releases of lots under the map, according with the sum named in the mortgage as necessary to be paid to release 2,000 square feet. This attempt to support the map had no such uniformity as would be required to give it sufficient weight to impose an obligation on the mortgagee. The rate per 2,000 square feet released varies from $69.74, for the lowest, to $99.12, for the highest. An attempt was made to obtain an average nearer to $90, by taking in the superficial area of the alleys; but this rule, while helping in some cases, would hinder in others, and I can see no reason for putting in the area of alleys as a factor, and omitting that of streets. If the latter be done, all possibility of harmony between the sum named in the mortgage and that actually agreed upon in the releases granted is destroyed. More than 1,500 lots are shown on the map. There were only 12 releases given, releasing 33 lots before the scheme was abandoned. None of these were given to the defendants Anderson or Heck. All were given to the mortgagor company. The amounts paid for releases were none of them, when computed, shown to be exactly at the rate of $90 for 2,000 square feet; and some of them varied so greatly that it was, I think, demonstrated that this rate was not in fact one recognized by the parties as a basis at the time of the giving of the release, and that, where there was an approach to this rate in fixing the sum to be paid for releases of fractional parts, it was a mere coincidence. The testimony of the witness Taylor (one of the officers of the mortgagor company), for the defendants, was that he thought there was, "to the best of his knowledge," an understanding with Mr. Hall (the agent of the mortgagee) that the agreements in the mortgage should be interpreted to apply to the map. No other witness aided this proof. Mr. Taylor testified that the settlements for the releases and payments therefor, by check, were conducted by Mr. Moore (another officer of the mortgagor company), and not by him (Taylor). So it is indicated that, in speaking of his "thought," and "to the best of his knowledge," this witness was drawing an inference, rather than swearing to a fact. On the other hand, Mr. Hall, who actually conducted the release settlements, swears positively that he never saw either the map or an outline of it until after the deed for the property, and the mortgage of it, had been exchanged; that there was no agreement to release by a map to be drawn, and that there was no agreement as to releases outside of that contained in the mortgage; that the releases were arranged with Mr. Moore, as applied for, and there was, on talking it over, an arbitrary amount fixed, not always the same; that they had no way of calculating to find it. In this condition of the proofs, I cannot see any ground upon which to sustain the defendants' claim to a right to a release of their lots from the lien of the complainant's mortgage. The superficial area of lots 22 and 23 in section 5, belonging to the defendant Anderson,is 3,060 square feet. That of lot 36, section 11, belonging to the same defendant, is 1,275 square feet. The lot No. 51, section 5, belonging to the defendant Heck, contains 1, 184 square feet it is these areas which the defendants insist the complainant is bound to release. None of these areas are within the operation of the release clause in the mortgage, nor has any other obligation to release them been shown to be incumbent upon the complainant.
The defendants also insist that the complainant, by the giving of the releases to the mortgagor company, is estopped to deny the defendants' right to releases. The complainant had the right to release any lot she chose without any agreement. That she released lots for the mortgagor company did not of itself obligate her to release other lots for its grantees. To impose this duty upon her, there must have been some contract. That the provision in the mortgage did not require the complainant to release the defendants' lot has already been shown. No proof has been given showing that the complainant's conduct induced the defendants to buy, in the expectation of a release. There is no evidence that the defendants Anderson and Heck, or either of them, even knew of the releases to the mortgagor company, and purchased their own lots relying on this action of the mortgagee, as an interpretation of the clause of release in the mortgage. Nothing done by the complainant appears to have induced the defendants to change their position. They simply bought their lots subject to the complainant's mortgage. There is no room for the application of the doctrine of estoppel.
The complainant claims that the nonpayment of interest and taxes had caused the principal to become due, before any tender was made in part payment of the principal, under the release clause in the mortgage, and that while interest remained due and taxes unpaid, the defendants had no right to insist upon a payment on account of the principal. The efficiency of the defendants' tender of the release money claimed to be sufficient, and its amount, and proper payment into court, are also denied by the complainant. I do not think it necessary to determine these questions, as, in my opinion, the defendants have failed to show their right upon any ground to the releases demanded. I will advise a decree in accordance with the prayer of the complainant's bill, without releasing the defendants' lots. The order of sale of the different lots must preserve the equitable rights of the purchasers from the mortgagor company and their grantees.