Opinion
01-06-1890
SHERRON v. ACTON et al.
W. T. Hilliard, for complainant. M. P. Grey, for defendant.
W. T. Hilliard, for complainant. M. P. Grey, for defendant.
This case, in every one of its main features, is so very similar to that of Herbert v. Association, 17 N. J. Eq. 497, that I can find no possible excuse not to be governed by it in disposing of the question raised by the demurrer under consideration. Notwithstanding the able argument of counsel, this last case must be regarded as controlling that of Benedict v. Benedict, 15 N. J. Eq. 157, so far as they are at all in conflict. It is further insisted that it does not appear that the complainant had knowledge at the time she took her mortgage upon the land that the defendant, who had taken a prior mortgage on the same premises, had also at the same time taken building and loan stock as collateral and additional security; and that, this being so, she could not have relied upon any equitable right to compel the marshaling of assets, and require it to apply the proceeds of the building and loan stock first to the discharge of its mortgage. I think the equitable doctrine is broader in its application than this contention implies. Whether a subsequent mortgagee takes his security relying for his protection upon any other security which the prior mortgagee may have, and which in equity such prior mortgagee may be compelled to apply or not, or whether such prior mortgagee acquired such additional security at any time afterwards, in each of the supposed cases every subsequent mortgagee may, upon discovery of the fact, require such prior mortgagee to utilize such additional collateral security. So free and large is the equitable doctrine that assets will in many cases be marshaled, provided the facts which move the court appear at any time during the progress of the trial, even though they have not been alleged in the pleadings. This last was so declared in Gibbs v. Ougir, 12 Ves. 413. The demurrer will be overruled, with costs.