Hackensack Savings Bank v. R. P. Terhune Manufacturing Co., 45 N.J. Eq. 610

Hackensack Savings Bank v. R. P. Terhune Manufacturing Co.

45 N.J. Eq. 610 | New York Court of Chancery | 1889

Pitney, V. C.

The complainant had obtained a decree of this court declaring-its judgment to be a lien on the premises described in the bill subsequent, however, to that of the defendants, Mrs. Gaskell and Edward Linn. From that decree the owner of the equity had appealed, and, pending the appeal, the prior encumbrancers advertised the property for sale, and brought it to sale before the decision on the appeal was made or was ripe. Of course, the *613complainant could not predict with certainty what that decision would be, nor when it would be made, and therefore could not know whether it would derive any benefit from any surplus that the property might bring over the Gaskell and Linn judgments. If such surplus was not to be applied to complainant’s judgment, it naturally would pay no attention to the sale, and would not feel justified in bidding above the prior encumbrances upon the mere chance that the surplus might, by a judicial decision thereafter to be made, be applied to this judgment. Oh the other hand, were its lien finally established, it might and almost certainly would find it to its interest to bid up the property to its full value, since it would be obliged to pay in cash only the .amount of prior encumbrances.

Under these circumstances, it seems to me perfectly clear, that •complainant had such an interest in the premises as to entitle it to subrogation. It had a decree establishing its lien, which might or might not be discharged on appeal, and it was of manifest importance to it that the sale of the premises under the prior encumbrances should be postponed until the event was known. In order to effect such postponement it was obliged to pay off - those encumbrances.

This, I think, brings it within the protection of the rule laid down in the authorities. Shinn v. Budd, 1 McCart. 234; Hamilton v. Dobbs, 4 C. E. Gr. 227; Bigelow v. Cassedy, 11 C. E. Gr. 557; Sheld. Sub. §§ 3, 12; Mosier’s Appeal, 56 Pa. St. 76.

I will advise a decree accordingly, with costs, in favor of the complainant. The defendants, Mrs. Gaskell and Edward Linn, answered under oath in response to the demand of the complainant in that behalf, and are, therefore, entitled to their costs, to •be paid by complainant.