Opinion
02-13-1903
MONMOUTH COUNTY ELECTRIC CO. v. CENTRAL R. CO. OF NEW JERSEY et al.
L. M. Garrison, for complainant . J. L. Conover, for defendants.
Suit by the Monmouth County Electric Company against the Central Railroad Company of New Jersey and another. Decree for complainant.
L. M. Garrison, for complainant .
J. L. Conover, for defendants.
EMERY, V. C. At the hearing of the cause my conclusion was announced, that the complainant, as purchaser at foreclosure sale (or the grantee of such purchaser), was entitled to be subrogated to the rights of the mortgagee in the foreclosure suit to the extentclaimed; that is, the amount paid by the purchaser at the sheriff's sale ($250,000). This seemed to me then to be the clear effect of the decisions from Parker v. Child, 25 N.J.Eq. 41, and Chilver v. Weston, 27 N.J.Eq. 439, to Boorum v. Tucker, 51 N.J.Eq. 135, 149, 26 Atl. 456; Pettingill v. Hubbell, 53 N.J.Eq. 584, 32 Atl. 76. I do not change my views upon further consideration. The question reserved was whether the mortgage was a lien, prior to any claim of the defendants, upon poles and wires erected upon defendant's property subsequent to the execution of the mortgage, by an agreement between the mortgagor company and defendant. The mortgage covered all existing and after-acquired property of the mortgagor company, and was duly recorded before the execution of the agreement between the mortgagor company and the defendant. Under the agreement, the poles and wires were erected on defendant's lands, and, as I construe its effect, they were the property of the mortgagor company, and they still remained its property at the time of the foreclosure. The mortgage expressly covered all after-acquired property, and under our decision the mortgage is, in equity, a den upon these poles and wires afterwards acquired, which is prior to mortgagee or judgment creditors subsequent in date to the mortgage. Smithurst v. Edmunds, 14 N.J.Eq. 408 (Ch. Green, 1862), approved McFarland v. Stanton Mfg. Co., 53 N.J.Eq. 650, 33 Atl. 962, 51 Am. St. Rep. 647 (Err. & App.); Cumberland Nat'l Bk. v. Baker, 57 N.J.Eq. 231, 40 Atl. 850 (V. Ch. Grey, 1898). The defendants have no lien upon this after-acquired property, either by the agreement or otherwise, and have only the right to purchase it at a valuation, or to require its removal on the termination of the agreement, which has already expired.
There must be a decree in favor of the complainant, requiring defendants to redeem or be foreclosed.