34 N.J. Eq. 493 | New York Court of Chancery | 1881
The complainants ask that Joseph W. Allen, the obligor and mortgagor, and William Gibby, Joseph E. Allen and others, who, as grantees of the mortgaged premises, assumed with their
Against the defendants in this case, who are sought to be personally charged for deficiency, on the ground that they assumed with their grantors to pay'the mortgage debt, and so became liable, in equity, to the holders 'of that debt, the above act has ■not been held to take away the right to a decree in equity, as in the ease of the Savings Institution v. Newark, it was held to do in respect to the obligor. The equitable obligation against the grantees who so assumed, the mortgage still remains, and may, I think, be enforced, but not in this suit to foreclose. The language of the act cannot be so construed as to prevent the holder of the mortgage from bringing a suit for that purpose, if a deficiency should be found to exist after foreclosure sale. The act •prohibits a decree for deficiency only “in all proceedings to foreclose.” To construe it as prohibiting the enforcement of an equitable obligation, ^enforceable nowhere else than in equity, would be to extend the act beyond its plain terms. The relief in equity is regulated, but not destroyed. The demurrer in the present case must, therefore, be sustained, and also, for the same reasons, the defence set up in the answer of the defendant William Gibby.
Assuming that the taxes referred to in the answer are liens upon the mortgaged premises (as they seem to be considered in the briefs), the question whether they are prior to the mortgage, and entitled to be first paid, is settled by the cases of Trustees &c. v. Trenton, 3 Stew. Eq. 667, and City of Paterson v. O’Neill, 5 Stew. Eq. 386. The charter of the city of Rahway (P. L. of
There should be a reference to a master, to ascertain the amount dire on the mortgage, and also the amounts due for taxes.
