113 N.J. Eq. 544 | N.J. Ct. of Ch. | 1933
The complainant's bill is filed to enjoin the defendant from proceeding to sale in the foreclosure of its mortgage until *545 the further order of the court, and is before me on the return of an order to show cause. It is substantially an application for a stay of execution in the foreclosure proceeding and might more properly have been presented by a petition in the cause instead of by independent bill. The form will be disregarded and the substance considered.
Defendant's mortgage is in the principal sum of $219,000, plus accumulated interest and taxes, the whole totaling $257,000. Complainant, now the owner of the premises, holds a second mortgage of $25,000, in which she assigned various interests to various parties, but retained to herself an interest therein for approximately $12,000. There was also a subsequent mortgage in the sum of $5,400 held by Elias Kanter. This mortgage was foreclosed and at the sheriff's sale, April 15th, 1932, complainant purchased the premises. December 17th, 1932, the John Hancock Mutual Life Insurance Company filed its bill to foreclose and the property is now being advertised for sale.
The bill is predicated generally upon the present economic situation. It is charged that if the foreclosure sale is permitted to proceed there will be no competitive bidding; that it is impossible at present for the complainant to procure a mortgage loan and that while "there has been a slight betterment in business conditions, complainant is advised and believes that with the betterment thereof and with the lapse of some intervening time she will be able to raise by means of mortgage upon the said real estate sufficient moneys wherewith to satisfy and discharge the decree of John Hancock Mutual Life Insurance Company." Stripping the bill of much verbiage, substantially the relief sought is an injunction to restrain the defendant from sale of the premises until the present economic conditions have passed to the extent where there will be an active market for real estate and an opportunity for the complainant to either sell her equity in the property at a profit or obtain a mortgage. She charges that the fair value of the mortgaged premises is at least $350,000, even in the present depressed condition of real estate. Attached to the bill of complaint are affidavits, one by Frank Hannock, *546 vice-president of the Fiedler Appraisal Corporation, that in his opinion the value of the property is $345,000 at the present time, and Henry C. Beech, another affiant, places the value at $325,000, while on behalf of the defendant, Edward E. Murdock states the fair value to be $247,000, and Robert B. Stoutenburgh says the same.
The defendant is pursuing an absolute right which it has under the law of this state. The probability, or even the possibility, of the complainant realizing her hopes is extremely remote. The mortgage is due and the defendant, under the bare allegations of the bill, cannot be halted to await the time when she may be put in funds to pay the debt. Cashin Co. v. Alamac Hotel Co.,
We held in Security Building and Loan Association v. Grande,
The order to show cause will be vacated and the bill of complainant dismissed.