Administrators of Glenn v. George a. Whipple

12 N.J. Eq. 50 | New York Court of Chancery | 1858

The Chancellor.

This is a bill to foreclose, filed by the administrators of the mortgagee against the mortgagors and a party holding a subsequent encumbrance. The mortgagors, George A. Whipple and his wife, have filed their answer. They admit the mortgage, and the money due upon it, but set up that the mortgage was given to Robert Glenn to secure the purchase money; that he gave a warranty deed, with full covenants that the property was free and clear of all encumbrances, &c.; Esther Ann Glenn, his wife, did not join in the conveyance ; that she survived her husband, and now claims her dower right in the mortgaged premises. The defendants ask the court to1 protect them against the encumbrance of the dower before permitting the complainants to enforce payment of the purchase money.

In the case of Van Waggoner v. McEwen and others, 1 G. C. R. 412, the Chancellor decided, that where a mortgagé is given to secure the purchase money of land, an allegation of an. outstanding title against the land purchased is no objection to a decree of foreclosure, aliter, if the purchaser is evicted, or an ejectment actually commenced against him. And in Shannon v. Marselis et al., Saxton 426, the Chancellor says, where there is a mere allegation of an outstanding title or encumbrance the court will not Interfere, but leave the party to his remedy on the covenant; hut where there is an eviction, or even an ejectment brought, it will interpose. In this latter case, relief was granted because the encumbrance complained of was a mortgage; the mortgagee was before the court prosecuting his claim; all parties were present, and the court had jurisdiction so as to do justice and settle litigation between all the parties. It is true the widow, whose dower In this case is alleged to he an encumbrance upon the property, is a party to this suit, hut not in her own right. She is one of the complainants, prosecuting as administratrix of her husband. She is not before the court in her individual capacity, and she claims nothing as his widow.

It will be found, upon an examination of the cases, that they do not go further than the cases I have referred to. Coster v. Munroe Manufacturing Co., 1 G. C. R. 467; Couse v. Boyles et al., 3 G. C. R. 212; Withers v. Morrell and others, 3 Edw. 560; Johnson and others v. Gere, 2 Johns. Ch. Rep. 546, carry the principle no further.

The complainant is entitled to his decree.