Opinion
12-12-1892
LOCKARD v. HENDRICKSON.
Geo. S. Grosveuor, for complainant. Howell Bros., for defendant.
Bill by Robert L. Lockard against John R. Hendrickson for a strict foreclosure of a mortgage on certain land, on which defendant bad a lien as judgment creditor.
Geo. S. Grosveuor, for complainant.
Howell Bros., for defendant.
BIRD, V. C. Lockard, being the owner of a bond and mortgage upon a lot owned by Joines, made an agreement with Joines to surrender the bond to him, in case Joines would execute and deliver to Lockard a deed of conveyance for the premises. Joines executed such deed of conveyance, and, upon its being delivered to Lockard, Lockard surrendered, not only the bond, but the mortgage also. Lockard discovered that he had made a mistake in surrendering the mortgage, but Joines refused to give it back, and procured its cancellation before Lockard could obtain the aid of this court. It was, however, afterwards decided that Lockard was entitled, under the agreement between him and Joines, to hold the said mortgage as a muniment of title. It appeared that, at the time of the surrender of the said bond and mortgage, there were three judgments against Joines, and it also appeared that Lockard contracted with Joines upon the conviction that there were no incumbrances subsequent to Lockard's mortgage. These judgments remained as such liens against the premises. Lockard files this present bill asking for a strict foreclosure of his mortgage unless the said judgment creditors will redeem. The only material dispute between the parties is as to the right of the complainant to insist upon a strict foreclosure. They insist that it should be optional with them whether there should be a strict foreclosure or a sale. The right of the mortgagor, or of him who holds the equity of redemption, to have the sale of the mortgaged premises, is perhaps no longer questioned, so long as anything remains due upon the bond; but I do not think this rule is applicable when the bond has been discharged; the owner of the equity of redemption has surrendered it to the mortgagee, and the mortgagee simply holds the mortgage as a muniment of title. In the case in hand nothing is due from the obligor to the complainant; nor bus the complainant any claim against either of the judgment creditors which he can enforce, except upon the principle which enables him to quiet the title to the land which he holds. He can only say to them: "You acquired liens against Joines while he held the equity of redemption in these lands, and to that extent they continue to be liens against these lands. It is your right to enforce your liens by sale of the premises. If you do not see fit to attempt to enforce your liens by sale of the premises, then it is my right to remove these clouds from the title by calling upon you to pay the amount of my interest in the premises, which would be the amount due upon the bond at this time if the bond had not been surrendered, and take the premises, or to stand forever foreclosed and barred of all claim against them." They have a right to tender to the complainant the value of his bond, and so redeem the property therefrom; but they cannot compel him to go to the costs of making a sale in their interests. In no possible respect would such a course be beneficial to the complainant. If the law required it in a case like the present, it would be compelling the complainant to experiment at his own cost, for the benefit of the defendant. This would be shifting the burden from those who ought to have it, and who are to be benefited by the proceedings. I think in every similar case the practice in this state has been to sustain a bill for strict foreclosure, giving the defendant an opportunity to redeem the premises by paying, within a reasonable time, the amount ascertained to be due to the complainant, or be forever foreclosed. Parker v. Child, 25 N. J. Eq. 41; Lansing v. Goelet, 9 Cow. 346, 350; Benedict v. Gilman 4 Paige, 58; Clark v. Reyburn, 8 Wall. 318. The complainant must account for the rents and profits during his occupancy. Parker v. Child, supra. As to the parties, I think the wife of Lockard should be brought in, and also should William M. Lanning, the judgment creditor. 1 see no reason for making Joines or his wife parties, since their interest in the premises was absolutely conveyed by deed to Lockard.