Opinion
Decided March 18th, 1931.
1. A release clause, in a mortgage on building lots, by its terms specifically limited its operation to releases to be given by the mortgagees "to the mortgagor upon the payment by the mortgagor to the mortgagees" of a specified amount per lot — Held, that the release covenant was not available to mechanics' lien claimants.
2. The right of the parties to the release covenant to so limit its operation cannot be doubted.
On bill to foreclose mortgage. Hearing on motion to strike out counter-claims.
Mr. Samuel P. Hagerman, for the complainant, for the motion.
Mr. Russell G. Conover, for the defendants American Supply Company and Staples Company, Incorporated.
Mr. David A. Veeder, for the defendant Heulings A. Sever.
The only essential inquiry herein is whether the release clause contained in complainants' mortgage enables three defendants, each of whom has filed mechanics' liens for labor or materials supplied to a building on certain lots embraced in the mortgage, to discharge the mortgage lien on such lots by paying to the mortgagees the stipulated release money.
The release clause contained in complainants' mortgage is as follows:
"And it is hereby stipulated and agreed by the parties to these presents that any lot above mentioned shall be released by the mortgagees herein named to the mortgagor upon the payment by the mortgagor to the mortgagees of the sum of one hundred dollars."
The language of this covenant, like that in Dimeo v. Ellenstein et al., 106 N.J. Eq. 298, specifically limits its application to releases by the mortgagees "to the mortgagor upon the payment by the mortgagor to the mortgagees" of the amount named. The right of the parties to so limit the operation of the covenant cannot be doubted.
In Ventnor Investment and Realty Co. v. Record Development Co., 79 N.J. Eq. 103, cited by defendants, the terms of the release covenant were in no way restrictive, and the evidence disclosed that the covenant was contemplated by the parties and applied by them as a covenant available to and for the benefit of purchasers of lots.
This view renders unnecessary a consideration of the other objections made by complainant.
The counter-claims will be stricken out.