67 N.J. Eq. 275 | New York Court of Chancery | 1904
On January 1st, 1894, Dan S. Eoberts and wife conveyed to John H. McVey a lot of land in Plainfield. The grantor owned an adjoining lot, and in his deed of conveyance to McVey he granted to him a right of way therein appurtenant to the lot conveyed. On January 2d, 1894, the Prudential Insurance Company, who held a mortgage on both lots, gave to John II. McVey a deed of release. The release purported to “grant, release, quit-claim and set over” the lot conveyed, “together with the hereditaments and appurtenances thereto belonging.” The question raised by the answer is whether by these Vords the deed of release operated to fasten the incorporeal hereditaments upon the interest and estate of the mortgagee in the lot not released against the express provision therein contained, “that the rest of the lands in the said mortgage specified may remain to the said party of tire first part as heretofore.”
It seems to me that the question thus raised is a-purely legal one. The bill is filed merely to foreclose the equity of redemption. The purchaser at the foreclosure sale will take the same-title that the mortgagee would have taken in a strict foreclosure. Gen. Stat. p. 385 § 72. This title will be that which the mortgagor gave to the mortgagee, stripped of all equity of redemption and modified only in so far as the mortgagee or his assigns by subsequent conveyances saw fit to modify it. The decree will be that the defendants “stand absolutely debarred and foreclosed of and from all equity of redemption of, in and to the said mortgaged premises when sold as aforesaid under this decree,” and the description of the premises to be sold will be that contained in the mortgage itself, excepting thereout such part thereof as may have been released by the release of January 2d. Where there arc questions of legal title in dispute it is not the province of a foreclosure suit, under our system of jurisprudence, to settle them. Its appropriate end is to bar the equity of redemption. Questions of title arising after foreclosure must be settled by a judge and jury in a court of law.
With this view of the matter it may seem out of place to
On either grounds I think defendants’ answer does not interpose a partial defence to complainant’s bill.