43 N.J. Eq. 616 | N.J. | 1887
The opinion of the court was delivered by
Unless it be the law that a person can ask a court of chancery to refrain from compelling him, in the ordinary course of a fore
The facts are these: One Edward P. Canfield, claiming to be the owner of the lands in question, executed a mortgage on them to Henry W. Town, to secure the payment of a bond for $15,000, and subsequently conveyed them in fee to the respondent, the Island Beach Company. The bill alleges that this conveyance was accepted by the respondent, “ subject,” in the language of the averment, “ to the payments, conditions and agreements specified and contained in the said mortgage, made by the said Edward P. Carpenter to Henry W. Town, as aforesaid.” The mortgage was assigned to the appellant, and has been foreclosed by her in this case, she having become the purchaser at the sheriff's sale made in pursuance of the decree. The Island Beach Company, that had been made a party defendant, as the owner of the equity of redemption, refused to surrender possession of the premises, although it had permitted a decree pro confesso to be taken against it; thereupon an application was mad.e
In the course of the testimony taken on the motion for the writ in question, it was shown on the part of the Island Beach Company that, before the filing of the foreclosure bill, but subsequently to its taking the conveyance from Carpenter, it had acquired a title to the mortgaged premises from the board of proprietors, which it claimed to be paramount to the title of the complainant, derived through her mortgage at the sheriff’s sale.
The vice-chancellor, regarding the title thus disclosed as unaffected by the decree of foreclosure, on that account refused the aid of the court to the complainant, being the purchaser under the decree.
The ground of this judicial determination is thus stated by the vice-chancellor: Referring to the title derived from the board of proprietors, the opinion says: “ So far as appears, the defendant had a right to take such title, and, if it be true that it has., the first survey and location, it may ultimately be established, however many difficulties may present themselves, that such title
That the court could not, in the summary procedure then pending, have adjudged that the defendants’ title was either good or bad seems very plain; but it seems equally plain that the court was not called upon to make such an adjudication. What was due to the situation was, that it should be considered and declared whether, granting the existence of a legal title in the defendant, such title could be set up to bar the complainant from taking possession of the premises which she had purchased with the sanction of the court. This question was inherent in and circumscribed by the equities of the case as they appeared upon the record, and, therefore, as it would seem, the solution of it was a prerequisite to the determination of the complainant’s application for assistance. This aspect of the controversy appears to have escaped the attention of the court below, but it is in this light that this court will consider and dispose of the subject.
The fundamental assumption of'the vice-chancellor is that, in a foreclosure suit in the ordinary form, a paramount title residing in one of the defendants is not- so far put in issue as to call for its disclosure in the proceedings, unless such title be expressly referred to and challenged by the bill. ' Such a' proposition is a wide one, and would very materially affect the course of practice in the court of chancery. No decision, or even dictum is recalled that seems to favor it, and, as it is deemed, it stands opposed to principles of equity, which are as plain as they are important. Indeed, it' may be said that the rule, as formulated, would be productive, never of good, but always of vexation and injustice. In this case the complainant, at the time of filing her bill, was ignorant of the existence of this pretended title; she therefore could not put it in issue by any direct averment, or otherwise than she has done, and if this doctrine is to prevail, she has un
But, beyond this, it seems to me that, in view of a familiar and very essential principle of equity, a defendant, in the juncture stated, is bound to disclose his title. To remain silent, in such a
In my opinion, a defendant in a foreclosure suit, if he has a title paramount to that of the mortgagee, and he intends to enforce it, must set it up in his answer.
But, as has been already x'emarked, these particulars of the case have not been refex-red to with the object of deciding them, there being no necessity for such a course, as the appellant’s right to the relief prayed for is clear on another ground. That ground springs out of the agreement of the Island Beach Company to take its title from Carpenter, subject to the mortgage which the latter had before placed upon the px’operty. It will be remexxibered that this stipulation was to hold the premises, “ subject to the payments, conditions and agreements specified ” in that encumbrance. The defendant got possession of this land from the mortgagoi’, and when he agreed to hold in subordination to the mortgage previously created, his stipulation was, in effect, to accord to the íxiortgagee all the rights inherent in his estate, one of which was that, upon the conditions being broken, he might eixter and take possession of the property. In the respect which is, at present, alone important, the position of the grantee of the mortgagor is not dissimilar fi’om that of a tenant, relatively, to his landlord. These respective relationships are often assimilated in the discussion of the question whether the grantee of the mortgagor can put in controversy, while in possession of the property, the title by fox’ce of which he entered. Maxxy of the decisions on
The decree should be reversed.
With respect to the question upon which testimony was taken, and which occupies considerable space in the briefs of counsel, it is sufficient to say that its pertinency to the matter to be decided does not appear. That testimony seems to be directed to the inquiry whether certain lands, claimed to be embi’aced in the defendant’s alleged title, are embraced in the mortgage. With that inquiry this court has no concern. Certain premises have been Bold under the authority of the court of chancery, and the writ of assistance will.puttheappellantinto possession ofthose premises. The decree of the court, with respect of the extent of the appellant’s right on that subject, is not open, on this motion, to controversy.
For affirmance — Paterson—1.
For reversal — The Chancellor, Chief-Justice, Dixon, Reed, Scudder, Van Syckel, Clement, McGregor — 8.