28 N.J. Eq. 370 | New York Court of Chancery | 1877
By an order in this cause, made on behalf of the defendant, Iienry G-. Cook, on the 21st of December, 1875, on a motion to dismiss the bill for want of prosecution, after reciting that answers had been filed in. the cause by the Home Insurance Company, Henry G-. Cook, Augustus Smith and his wife, and "William Paterson, defendants, and that no other answers had been filed, and that the receiver appointed in this cause (Kuhl v. Martin, 11 C. E. Gr. 60,) had sold at public auction the property of which he was put in possession, for the benefit of those whom it might concern, and that the proceeds of the sale were then, or shortly thereafter would be, in the hands of the receiver, it was, by consent of the respective counsel of the complainants and answering defendants, referred to Frederick W. Stevens, Esq.,'one of the masters of this court, to ascertain, by such testimony as he should think proper and necessary, and report the priority of the claims of the respective claimants, parties in this suit, to that money; and that the receiver present his account of his receivership, under oath, before the master, who was to ascertain and report the amount of compensation proper to be allowed to him for his services; and that the master give to all persons who were parties to this suit, notice of the time and place of taking the testimony and settling the account of the receiver.
Under this reference the master proceeded to the discharge of the duties thereby imposed upon him, and on the 15th of April, 1876, reported that the judgments of the Hunterdon County National Bank stand first in order of priority as liens upon the oyster grounds which lie within this state; that the mortgage made to Henry G-. Cook, and by him assigned to Charles Keen, trustee for Jennie E. Martin, stands first in order of priority as a lien upon the oysters taken from all the oyster grounds, without regard to whether they lie within or without this state, and .is second in order of priority as a lien on the oyster grounds which lie within this state; that the judgment recovered by the Union
As to the money arising from the salp of the great beds, which, in his opinion, lie out of this state, he suggests that none of the parties to this suit are entitled to it, and that if this court had no jurisdiction to sell the land because of its being without this state, the lien of the mortgage held by Mrs. Martin remains unimpaired; and as those who purchased it from the receiver get no title, it seems to be equitable under the circumstances, if the court confirms his judgment as to the locality of the land, to refund the money; but he adds that as to the oysters on that land, Mrs. Martin’s mortgage was a lien upon them irrespective of locality, and they having been actually sold, she appears to be entitled to the proceeds. He further reports, that as to the oysters on the beds in this state, the Bnion National Bank and the complainant have a lien thereon by virtue of their levies which were not only upon the lands, but also upon the right to take oysters therefrom, and to plant oysters thereon. He also reports that, at the date of the report, there was due to the defendants, Henry G-. Cook, on his judgments (those recovered by the Hunterdon County National Bank) $7,213.08; to the trustees of Mrs. Martin, on her mortgages, $4,655.65; to the Bnion National Bank of Bahway, on their judgment, $7,908.06, and to the complainant, on his judgment, $9,709.83.
To the report, both Henry G. Cook and Mrs. Martin have excepted on the following, among other grounds : That the master permitted testimony to be taken (and considered it) with reference to the claim of Mrs. Martin, who had neither appeared nor answered, nor in any way set up her claims in the suit; that he passed upon the question of jurisdiction, which was not referred to him nor raised in the suit; that his
On the other hand, Mrs. Martin excepts on the ground that neither of the executions and levies thereunder created any lien on either the oyster grounds or the oysters thereon.
Mrs. Martin, who had neither answered nor appeared in the cause when the order of reference was made, asks leave now to answer. The answer which she proposes to file, if permission is given, alleges her bona fide ownership, for valuable consideration, of the land and premises mortgaged by her and her husband to Henry G-. Cook, by the mortgages for $4,000 and $2,500 respectively, at the time when those mortgages were given; that she executed those mortgages on that property (which, as she alleges,'was her separate estate, not obtained by voluntary conveyance from her husband,) in order to enable Cook, by means of and with those mortgages, to obtain an assignment to himself of the Hunterdon County Rational Bank judgments; and that it was agreed that, in consideration thereof, the mortgages then held by him, and given to him by her husband and herself, should be, as they were, assigned to her.
Though, the master was, by the order of reference, required to notify all the parties in the suit, whether they had appeared or not, it by no means followed that he was to entertain the claims of all parties to the suit who should present them, irrespective of the pleadings. It was intended that all parties in interest should have an opportunity to be present at the taking of the account, but it was not designed to disregard in this case the ordinary regulations of practice in this respect. Mrs. Martin had no standing in the cause
In fact, the relation of the claims to each other, as to order of priority, had not, when the order of>reference was made, been affected by the litigation. There was nothing in the cause to show that Mrs. Martin had any claim whatever upon the property in question. Her silence when she. was called upon to answer, was proof that she had none. Moreover, it appears from the answer which she desires leave to file, that the mortgages held by Cook were given by her and her husband for the amount due upon the mortgage which. Cook assigned to her, and that one object of the parties in giving the new mortgage, was to enable Cook, by means thereof, to obtain an assignment of the judgments of the Hunterdon County National Bank. It appears to
But to consider the ease as presented before and considered by the master. The judgments of the Hunterdon County Bank are by law entitled to priority, as far as the land in this state is concerned, over the mortgage of land assigned to her trustee, and if the levies under the executions thereon are valid, they are, by law, entitled to priority over the chattel mortgage also, for the judgments were recovered on the 5th of September, 1873, and the levies were made on the 10th, but the chattel mortgage was not filed until the 13th.
It is insisted, on behalf of Mrs. Martin, and the master so reports, that the levies under those judgments were valid as to part of the oyster grounds, (the part which is, in his opinion, in this state,) were not valid as to the rest, because he finds that it lies outside of the limits of this state, and that no levies were made upon the oysters which were on the grounds. For the reason before given the judgments in the hands of Cook (the levies were made under them before he took his assignment thereof) are, from equitable considera
The evidence on the subject is not of such character as to be conclusive or satisfactory. ' Rut it appears that the receiver, after selling a large part of the oysters, advertised and sold the beds and remaining oysters together, the oysters with the beds. "What the relative values thereof were, does not appear.
The purchasers have, for aught that appears to the contrary, converted the oysters to their own use. They have not been disturbed in their possession of the beds, and, except as the question was raised before the master, it does not appear that any ever was raised as to whether the beds were indeed within the limits of this state. They were not only supposed by the parties to this suit, and to the transactions involved therein connected with the beds, to be in this state, but, as far as appears, they were by common consent regarded as being in this state. I see no good reason for hesitating in distributing the money in the hands of the receiver on account of the jurisdictional question raised before the master. That question was not raised by the pleadings and is not in the cause. All of the exceptions on