107 N.J. Eq. 512 | N.J. Ct. of Ch. | 1931
This bill was filed to foreclose two mortgages, one for $2,800, executed by one Wagner in 1914, and the other for $600, executed by the defendant Eleanor M. Dancy in 1926. Wagner was the former owner of the mortgaged premises and he conveyed to John J. Dancy on April 28th, 1915, Dancy taking subject to the $2,800 mortgage. John J. Dancy died intestate May 9th, 1923, leaving surviving him his widow, Eleanor M. Dancy, and several minor children, who are the petitioners here. It was some three years and five months after his death that Mrs. Dancy executed the $600 mortgage to the complainant Building and Loan Association. She later married the defendant Michael Pocino, and in 1927 died intestate, leaving the infant petitioners, her husband, and two children who were of age, surviving her. The bill alleges that there was a total of $3,400 due the complainant on the two mortgages at the date of filing the bill. All the parties, including the infants, were duly served, and Pocino, the stepfather, was appointed guardianad litem of all the infant defendants. He filed an answer admitting all the allegations of the bill except the allegation as to the amount due on the mortgages. This allegation was denied. Thereafter, the matter was referred to a master, who reported that there was $615.35 due on both mortgages. Final decree confirming the master's report and directing sale of the premises was entered on June 18th, 1928, and on October 3d 1928, the sheriff of Union county, in pursuance of an execution issued out of this court, sold the premises to one Aaron Kaufman for $3,900. Kaufman received his deed from the sheriff and later sold to one Weisbrot, who mortgaged the property to Springfield Building and Loan Association for $5,500. This mortgage was later paid and then Weisbrot conveyed to the defendant Zlatkus, who mortgaged the premises to Mutual Savings Fund Harmonia, for $5,000. That mortgage is still open of record and unsatisfied. After the sale, the sheriff paid to the complainant the amount of its decree and costs and still has in his hands the sum of $2,900, *514 representing surplus moneys resulting from the sale. On June 10th, 1930, one year and eight months after the foreclosure sale, the present petition was filed, in which the petitioner seeks to set aside the decree, fieri facias, sheriff's sale, sheriff's deed and subsequent deeds, mortgages, c., and asks for an accounting from all parties concerned, and an order is prayed that the complainant pay back to the sheriff the amount which it received in satisfaction of its decree. The petition for this relief is based upon the allegation that at the time the $600 mortgage was executed by Mrs. Dancy the proceeds of this mortgage, plus the value of the building and loan shares held by the association as collateral, were applied to the payment of the $2,800 mortgage; that the mortgage, having been paid, was not subject to foreclosure when the bill was filed and the decree entered; that the only mortgage which the complainant association held was the $600 mortgage executed by the widow, Mrs. Dancy, and that that mortgage did not bind the lands, at least no interest therein beyond the dower right of the widow; that that right ceased upon her death and that the premises were not, therefore, subject to foreclosure and sale under that mortgage.
An examination of the file discloses that all of the proceedings in the cause were regular and the decree on its face is valid. If any mistake was made in the proceedings, which seems probable, it was by the master. No exceptions to the master's report were filed and all subsequent proceedings were regular on their face.
The present procedure is the modern substitute for bill of review. Morris v. Glaser,