Morris v. GlaserMorris v. Glaser
Previous proceedings in this cause appear from recitals in my former opinion filed herein in December, 1929, in connection with petitions to open and amend the final decree and for other relief, not yet, but to be reported in conjunction with these conclusions. In that opinion I held that all moneys arising from the foreclosure sale, except such amounts as were found to be due on the first and second mortgages, should be paid into court as surplus money in order that the respective rights of the parties defendant, including the infant defendants, could be fixed therein and the moneys distributed amongst those entitled thereto. Upon application for the entry of an order in accordance with my former conclusions, objections to its form were interposed, and application was made by some of the parties for a determination of the rights of the respective parties in the fund to be paid into court prior to its actual deposit there. In order that the court might better decide the proper form of the proposed order, and might at the same time determine the rights of
Petitions to open and amend the final decree were filed by Jeannette Glaser, an infant defendant, who is still an infant; Max Glaser, an infant defendant who attained his majority on January 27th, 1928; Long Branch Banking Company, Citizens National Bank of Long Branch and Southern Lumber Company, subsequent encumbrancer defendants. The petitions of Jeannette and Max Glaser were filed in August, 1929. Uрon the return of orders to show cause issued on the petitions of the subsequent encumbrancer defendants, counsel for the infant defendant-petitioners challenged the jurisdiction of the court to consider the petitions of the subsequent encumbrancer defendants on the ground that they were bound by the former proceedings, however erroneous, because they had accepted the benefits of the decree and, it was claimed, were, therefore, estopped to deny its validity and correctness. Upon this ground they, together with counsel for the widow, refused to answer the petitions or the orders to show cause issued thereon. Later, after my conclusions had been filed and the proposed order pursuant thereto was presented to the court, I announced that before the entry of the order, evidence relative to the rights of the respective parties would be received at a hearing on a day
It was assumed by the court that pending such hearing a written stipulation would be entered into by the various solicitors, but this was not done, and on the day fixed for the hearing all parties with their respective counsel appeared and the solicitors of the infant defendants objected to any proceedings or any hearing except upon the infants’ petitions, and claimed not to have theretofore stipulated in open court to the proposed hearing and the determination of the rights of the various parties in this proceeding. The court‘s recollection was to the contrary, and that recollection was confirmed by all counsel except counsel for the two infant defendants and the widow. I considered the previous stipulation in open court as binding upon all parties notwithstanding no record thereof was made, and overruled all objections to proceeding with the hearing. That stipulation I did not consider prejudicial to the rights of the infant defendants and I know of no rule which would prevent these solicitors “from assenting to such arrangements as will facilitate the determination of the case in which the rights of the infants are involved.” Caruso v. Caruso, 101 N.J. Eq. 350.
Notwithstanding the refusal of counsel for thе infant defendants to answer the petitions of other defendants, and to submit any evidence except the file in the foreclosure suit, it should be noted that all during the course of the many hearings in this proceeding counsel for the infants sat beside counsel for the widow, and while not actually examining or cross-examining any witnesses, or offering any testimony themselves, they actually participated in the hearings and in the examination and cross-examination of witnesses through counsel for the widow, and they are, in my judgment, by such participation, as much bound by the proceedings as they would have been had they personally examined and cross-examined witnesses who were sworn. Aside from that, at the
“A foreclosure suit cannot be said to have terminated until the surplus moneys have been disposed of in that suit. The court has not only the power, but it is its duty in that action to provide for the equitable disposition of the surplus money. The judgment of foreclosure and sale does not terminate the suit or deprive the court of the power to make other orders in it. The equities of lienors subsequent to the mortgage foreclosed are just as much before the court, and as much the objects of its care as those of the mortgage primarily foreclosed.” Thom. Mort. 379.
During the course of the hearings in this proceeding, errors in the master‘s report, in the final decree, and in the fieri facias, in addition to those errors which previously appeared and were mentioned in my former conclusions, were shown to exist and those errors should now be corrected. The master‘s report and the final decree found that the mortgages of the two banks and the lumber company were liens upon the “undivided one-third interest of Harry Glaser and the dower interest of Sarah Glaser.” This was an error. They were a lien, if a lien at all, upon whatever interest these parties had in the premises. The mortgage so provided, their exact interest not being specified therein. It was also claimed on behalf of the infants and the widow, that there was an error in the amount fоund to be due to the complainant on his mortgage; but at the hearing counsel waived the right to question this amount and stood on the record as it appeared at that time. The decree having been opened it is the right of the infant defendant Jeannette Glaser, at least, to have the court fix the true amount due upon the complainant‘s mortgage if an error was committed, and this right is one which counsel for the infants cannot waive.
Procedure by petition to open a final decree and order to show cause issued thereon is the modern procedure recognized in this state as a substitute for the procedure by bill of review, or by bill in the nature of bill of review, and although our practice still recognizes such bills, the practice of procedure by petition and order to show cause has been recognized in this state for more than a century. Miller v. Rushforth, 4 N.J. Eq. 174; Watkinson v. Watkinson, 68 N.J. Eq. 632; Cook v. Weigley, 69 N.J. Eq. 836; Sparks v. Fortescue, 73 N.J. Eq. 251; Boyer v. Boyer, 77 N.J. Eq. 144; Jones v. Read-Jones, 84 N.J. Eq. 479; In re Roberson, 95 N.J. Eq. 672; Mitchell v. Mitchell, 97 N.J. Eq. 298; In re O‘Mara, 106 N.J. Eq. 311.
Ordinarily an infant may file a bill of review at any time before he attains his majority, or thereafter, within the time within which he could successfully prosecute an appeal. Fletch. Eq. Pl. Pr. 985 § 926. Time for appeal by the defendant Max Glaser would have expired on January 27th, 1929, which was one year after he attained his majority. Under certain circumstances the chancellor could have extended the time for six months thereafter.
As I have already suggested, the rights of the respective parties will be determined as on an application for distribution of surplus moneys paid into court after foreclosure sale.
The master‘s report should have recommended a sale to make the amount due on the first and second mortgages and the payment of the surplus, if any, into court to abide the further decree of the court. What should have been done will be considered as having been done for the purpose of this proceeding.
Surplus moneys arising on foreclosure stand in place of the land itself as to the liens thereon or vested rights therein. Servis v. Dorn, 76 N.J. Eq. 241; Zelley v. Zelley, 101 N.J. Eq. 37. The same rule applies as well to land sold by order of the orphans court for payment of debts, or on partition. The proceeds retain the character of real estate for the purposes of succession. Oberly v. Lerch, 18 N.J. Eq. 346. The theory upon which such surplus proceeds are held to be land is that the surplus usually arises because more land is sold than is necessary, in one case, to pay the debts of decedent; in another (foreclosure), than is necessary to satisfy the mortgage debt; and in partition, because the land is impossible of division and for practical purposes it has been converted into money. But in each case the money
Before considering the various questions arising on this proceeding, additional facts established by the evidence submitted at the hearings should be noted. At the time of the death of Simon Glaser he was the owner of certain lands on Atlantic avenue, in the city of Long Branch, on which was an old hotel erected about half a century before and which was obsolete and in a bad state of repair. There were no modern conveniences in the hotel, and the building itself was of very little value. Some witnesses testified that the land was of more value without the hotel than with it. The widow and her children resided in this hotel at the time of Simon Glaser‘s death, and notwithstanding its dilapidated condition the widow and her adult son Harry operated the hotel until 1922, when it was decided that it was impossible to successfully and profitably operate it any longer and ways and means were sought to erect a new hotel on the premises. At the time of Simon Glaser‘s death this property was encumbered by two mortgages held by one Dobbins, one of $18,000 and another of $5,500. On July 23d 1920, $1,000 was paid on account of the $5,500 mortgage and later another payment of $400 was made thereon, thereby reducing
I will consider the various issues in the following order:
1. Amount due on the first mortgage.
2. Interest of Jeannette Glaser in the surplus money.
3. Interest of Max Glaser therein.
4. Interest of Harry Glaser therein.
5. Interest of Sarah Glaser therein.
6. Validity and effect of Sarah Glaser‘s mortgage.
1. AMOUNT DUE ON THE FIRST MORTGAGE.
Before this mortgage was taken over by Mr. Morris a fire occurred which damaged the hotel building and out of the insurance paid on account of the fire loss several checks of different fire insurance companies, aggregating $3,554.50 and drawn to the order of the estate of Simon Glaser and the Dobbins estate, were delivered to Mrs. Glaser. She endorsed them as administratrix of the estate of Simon Glaser and delivered them to Morris, who sent them, together with
2. INTEREST OF JEANNETTE GLASER.
Jeannette Glaser, being still an infant, has the same interest in this surplus fund which she had in the mortgaged premises. That is an undivided one-third interest in such sum as represents the value of those premises in excess of the amount due on the first and second mortgages, plus foreclosure costs, on the date of the sale, subject, however, to the dоwer right of Sarah Glaser, and subject, also, to the rights of Harry and Sarah, if any, to subrogation to the increased value of the property by reason of the improvements made by them and by reason of their payments on account of the principal of the $5,500 mortgage. But in fixing these rights they are not to be enlarged, nor are the rights of the other parties to be defeated, merely because this claimant happens to be an infant. In re Shreve, 87 N.J. Eq. 7; affirmed, 87 N.J. Eq. 710; Graves v. Graves, 94 N.J. Eq. 268. The total value of the equity in this property on the date of the foreclosure sale I have fixed at $4,547.48 as will hereinafter appear. From this should be deducted the present value of the widow‘s dower, also hereinafter fixed at $705. This will leave a net equity of $3,832.48, to one-third of which, or $1,280.83, Jeannette is entitled.
3. INTEREST OF MAX GLASER.
Except for the alleged ratification or estoppel by reason of his conduct after he became of age, Max Glaser would be entitled to the same as Jeannette. There is no doubt whatever but that Max had full knowledge, notwithstanding his minority, of everything that was being done in connection with
4. INTEREST OF HARRY GLASER.
It is undisputed that Harry Glaser was entitled to a one-third interest in the equity of the mortgaged premises at the time of his father‘s death, and at the time he executed the mortgagеs to the banks and the contractor, and that whatever his interest is, is covered by those mortgages. This proceeding being for a division amongst co-tenants of that which stands in the place of land of which they were co-tenants, equitable principles applicable to actual partition should apply. The rule in partition respecting improvements by a co-tenant, already adverted to, is, in my judgment, applicable in this proceeding to the same extent as it would be if this were a proceeding strictly in partition. I have found no New Jersey decision directly in point, nor has the diligence of counsel referred me to any; but the case of Salem National Bank v. White, 159 Ill. 136; 42 N.E. Rep. 312, is, I think, on all fours with the instant case. There one tenant in common mortgaged the common property to secure a loan used in the improvement of that property, and it was held that the mortgagee was entitled to a lien on the interest of the mortgagor, and also on the increase in the value of the interest of the other co-tenants caused by such improvements. In that case the court said:
“When the mortgage of 1889 was executed to secure an indebtedness representing money used in improving the property, Susan White and Josеph I. White were tenants in common, she owning three-fourths and he one fourth. He was a tenant in common with the other children when the mortgage of 1877 was made. If his interest in the land was made more valuable by reason of the improvements, and will sell for more at the partition sale on that account, it would seem to be just that he should make compensation. The doctrine, in equity, is that when improvements have been made by one tenant in common, the portion improved should, if practicable, be assigned to him in the partition of the estate; and when such a division cannot be made, he should be allowed a reasonable remuneration from those who receive the benefits of the improvement. Where the premises are sold because they are not susceptible of division, the tenant in common making the improvement should be allowed the actual increase of the price received at the sale in consequence of the improvement made. Louvalle v. Menard, 1 Gilman 39; Howey v. Goings, 13 Ill. 95; Dean v. O‘Meara, 47 Ill. 120; Kurtz v. Hibner, 55 Ill. 514; Mahoney v. Mahoney, 65 Ill. 406. In the case at bar, appellee Joseph I. White should be charged, as between him and his co-tenant, Susan White, with such increase in the amount which his one-fourth interest in the land shall bring at the sale as results from the fact of its being imprоved. Cooter v. Dearborn, 115 Ill. 509; 4 N.E. Rep. 388. If Mrs. White is entitled to such increase, her lien therefor passes to appellant by virtue of the mortgage executed by her. Improvements placed on real estate by the mortgagor inure to the benefit of the mortgagee, and so, if one tenant in common places improvements upon the common property, and thereby acquires a lien on his co-tenant‘s interest for a proportionate share of the increase in value caused by the improvement, it will be an accession to his interest, which will be subject to a mortgage given by him on the property, and will pass to the mortgagee, to the same extent, in the same manner, and for the same reasons that the improvements became liable
The rule that improvements made by a mortgagor inure to the benefit of a mortgagee, and the rule in partition respecting the right of one co-tenant against another co-tenant because of improvements made to the common property at his expense, and which formed the basis of the decision in the Illinois case, are both recognized in this state. 41 Corp. Jur. 483, 485; Holloway v. Hendrick, 98 N.J. Eq. 713; Booraem v. Wood, 27 N.J. Eq. 371 (reversed on other grounds, 28 N.J. Eq. 450); Shipman v. Shipman, 65 N.J. Eq. 556; Gray v. Case, 51 N.J. Eq. 426. There is no doubt, therefore, but that Harry‘s interest in the mortgaged premises should be enhanced to the amount of the additional value contributed by the improvements which he made. But it is not necessary now to determine that exact amount. It will be discussed later. It is certain, however, that one $5,000 note was made and perhaps others endorsed by him, the proceeds of which went into the new building, and it is clear that he supervised all the work and made himself personally liable to the extent of the bank‘s and lumber company‘s claims, by executing bonds which were secured by the mortgages to the banks and to the contractor. To arrive at the amоunt of the actual value of Harry‘s interest, as enhanced by the improvements, it will be necessary to fix the value of the property before the improvements were made. Whatever his interest in the surplus funds, it is now vested in his mother by virtue of his will, subject, of course, to the claims of other parties to this suit.
5. INTEREST OF SARAH GLASER.
In order to determine the value of Sarah Glaser‘s interest in the surplus fund, the value of her dower interest in the mortgaged premises at the time of the death of her husband and at the date of the foreclosure sale, must be first determined. I think it must be assumed from the testimony of expert witnesses that in 1918, when Simon Glaser died, there was no equity in the property above the first and second mortgages. After her husband‘s death Mrs. Glaser as administratrix estimated the total value of the decedent‘s land, including property not embraced within the first and second mortgages, at $24,000. This value was stated by the widow under oath in her application for letters of administration on her husband‘s estate. The amount of the principal of the mortgages on the hotel property at that time was $23,500. As to the value placed upon the mortgaged premises in the inheritance tax report, we are left to inference only as she refused to produce the report at the hearing, availing herself of her privilege not to do so. Whatever inferences are to be drawn from this attitude on her part must be against her interest. All witnesses who testified as experts on the value of the mortgaged premises agreed that the value of the premises in 1918 and 1922 was represented by the value of the land alone and that the building was of no value whatever. One witness said the building had a junk value of $1,000. Under the circumstances of this case I think we are more concerned, however, with the value of the land at the date of the foreclosure sale, because it is as of that date that the infant Jeannette is entitled to have her share in the equity in the property determined, and it is that value that I shall consider. Whether under other circumstances the value of the widow‘s dower should be determined as of some other date, is immaterial here, because, as I view the matter, she will be entitled to nothing on the distribution anyway. The weight of the evidence of the expert witnesses with respect to the value of the premises is that between 1918 and
Assuming that the value of this land at the date of the foreclosure sale was $34,000 and the value of the old building which had then been destroyed was $1,000, we must compute the total of charges against that combined value by reason of the first and second mortgages. On the date of the sale there was due on these mortgages, and for costs on the foreclosure proceedings, the following amounts:
First mortgage, amount of decree .......... $22,371.35
Interest to date of sale .................. 443.69
__________ $22,825.04
Second mortgage, amount of decree ......... 4,100.00
Interest to date of sale .................. 81.00
__________ 4,181.00
Payments on account of second mortgage to
which widow is entitled to subrogation .......................... 1,400.00
Interest on $1,000 from July 23d 1920, to
date of sale ................................................ 410.50
Interest on payment of $400 from December
14th, 1922, to date of sale ..................................... 108.00
Taxed costs on foreclosure and interest thereon ....... 818.48
Sheriff‘s fees apportioned to the value of the
land alone on the basis of the sale price ................ 709.50
___________
$30,452.52
Deducting this amount from the $35,000, the value of the mortgaged premises as above determined, would leave an equity in the property on the date of the sale of $4,547.48. At the hearing the widow testified that she would be fifty-four years of age in April, 1930. Her dower is one-third of the equity or $1,515.83. The yearly income at four per cent. on this sum would be $60.63; the present value of that annuity at age fifty-four is eleven and six hundred and twenty-eight thousandths times $60.63, or $705. (See mortality table appended to chancery rules.) To this amount should be added $1,400 for payments on account of the principal of the $5,500 mortgage, to which payments she is entitled, as against the heirs, to be subrogated; the amount of the increased value of the premises due to improvements made by her; and whatever interest she acquired under Harry‘s will. The sum of these four items represents her interest in the premises at the time of the sale and also in that which now stands in the place of the land. This interest, whatever it may be, is subject to the rights of subsequent encumbrancer defendants, and these rights will be determined under the next heading.
It is not suggested that the foregoing calculation as the result of which I have fixed the value of the widow‘s dower is absolutely correct, but I believе it is approximately so. In determining this value, I have had no assistance from counsel. If it is not correct, the errors may be corrected in the decree of distribution.
Counsel for the widow suggests that the time as of which the dower should be assigned is the time at which she consented to such assignment, citing Mulford v. Hiers, 13 N.J. Eq. 13, and that such consent was given on December 23d 1929, but that she has not consented to accept a sum in gross in lieu of dower. That is incorrect. Such consent by the widow as is required under the circumstances of this case was given by her when she executed the mortgages to the banks and the lumber company. Thereafter the power of consent or election was in her assignee. Potter v. Watkins, 104 N.J. Eq. 13. They have elected and consented by this proceeding to accept a sum in gross and this election cannot be avoided by the widow.
6. VALIDITY AND EFFECT OF SARAH GLASER‘S MORTGAGE.
“The status of the widow with regard to the lands of her husband, before the assignment of her third, is most peculiar. In some respects it is altogether unique. Although the title of dower is perfect on the death of the husband, the title of entry does not accrue until her portion has been set off in certainty, so that it has been said that this affords the only instance in which a title, complete in itself, and unobstructed by any adverse right of possession, does not confer upon the person in whom it resides, the capacity to reduce it into possession.
“`The dowress,’ says Parke, at page 153, `has no seizin in law, nor can she exercise any act of ownership before assignment.’ Neither can this inchoate interest be levied upon and sold under execution, nor is it assignable at law. In short, the authorities all agree upon the point, that at this state of the right of the widow, she has nothing in the land on which an estate `can be predicated’ and that such right is a mere chose in action.” Wade v. Miller, 32 N.J. Law 296 (at p. 306); See, also, Fuchs v. Christie, 79 N.J. Law 14; Capital Circle v. Schmitt, 84 N.J. Eq. 95; Tenbrook v. Jessup, 60 N.J. Eq. 234; Shields v. Hunt, 39 N.J. Eq. 485; 19 Corp. Jur. 535 § 213.
But while there is no doubt that the foregoing expresses the rule at law, it is not a rule of which the widow may take advantage. She is estopped by her own deed and it does not lie in her mouth to deny her title or right to mortgage her dower interest. Her contention and that of the infant defendants now is that, because she had no estate in the mortgaged premises at the time she executed the mortgages, her interest is not bound; but in this proceeding, if by admeasurement she acquires an estate in the premises, or in that which now stands in the place of the land, it will, as far as she is concerned, inure to the benefit of her mortgagee and she will not be permitted to deny her title or interest. Den v. Gardner, 20 N.J. Law 556; Tully v. Taylor (Court of Errors and Appeals), 84 N.J. Eq. 459; Northrup v. Ackerman, 84 N.J. Eq. 117. In Den v. Gardner, supra (at p. 560), the court said:
“Whatever may be the effect of ordinary deeds of conveyance without warranty in concluding a grantor, who has released or conveyed without interest, yet in relation to mortgages the question is well settled. By an equitable estoppel, based upon the legal fraud which would be otherwise permitted, one who mortgages land as his own, upon suit thereupon brought against him, shall not be permitted to derogate from his own mortgage, by denying his title, or by setting up title in any third person. * * *
“Such estoppel between mortgagor and mortgagee, is admitted and recognized both in England and in this country.”
This language was quoted with approval by the court of errors and appeals in Tully v. Taylor, supra, and almost a century ago, in Decker v. Caskey, 3 N.J. Eq. 446, this court held that “if a mortgage be made of an estate to which the mortgagor has not a good title, and then he who has the real title conveys to the mortgagor or his representatives a good title, the mortgagee will be entitled in equity to the benefit of it.” Whatever, therefore, may be the character of her dower consummate before admeasurement or assignment, her mortgage, as between her and her mortgagee, is good; and if in this proceeding dower is assigned and the defects in her
It is true that the widow‘s interest in this property was not at law subject to assignment, mortgage or conveyance before admeasurement. Her right has been characterized by the authorities as a chose in action, a right to compel admeasurement or assignment; but a chose in action has almost time out of mind been assignable in equity. Fidelity Union Trust Co. v. Reeves, 96 N.J. Eq. 490; Bacon v. Bonham, 33 N.J. Eq. 614; Sullivan v. Visconti, 68 N.J. Law 543; 5 Corp. Jur. 848 et seq.
As early as 1797 our state policy of approval of such assignments was established by the legislature. Patterson‘s Laws, page 254. And an assignment of dower before admeasurement will be sustained in a court of equity. 19 Corp. Jur. 536 § 215; Huston v. Seeley, 27 Iowa 183. See, also, numerous cases cited in 19 Corp. Jur. 535, 536. And it has been held that the purchaser of an unadmeasured dower interest may come into a court of equity to admeasure such dower as against heirs and to compel a conveyance by the widow after such dower is admeasured. Johnston v. Loose (Mich.), 167 N.W. Rep. 1021. It has also been held that a mortgage of a dowress on her unassigned dower will be sustained in equity. 19 Corp. Jur. 536. Where a widow joins with her heirs in the execution of a mortgage after the husband‘s death, so far as the mortgagee is concerned, she is estopped to claim dower or quarantine rights. 19 Corp. Jur. 533 § 208, and cases cited. In Freiot v. La Fountaine, 16 Misc. (N.Y.) 153; 38 N.Y. Supp. 832, it was held that a mortgage executed by two of fivе heirs and the widow to whom another of the heirs had conveyed his one-fifth is effective to bar the widow‘s dower right in the one-fifth interest of each of the two heirs who joined with her in executing the mortgage, although her dower interest had not been admeasured.
In Tompkins v. Fonda, 4 Paige 448, it was held that the unassigned dower of a widow could be reached by a creditor
“At law, the widow‘s right of dower, previous to an assignment thereof, is not an estate or freehold in the lands of her deceased husband, but is a mere right or chose in action. She has not, therefore, such an interest in the land as can be sold on execution. Neither can she, before assignment and entry, convey her dower right to a stranger, by any of the ordinary modes of conveying freehold estates, so as to vest the legal interest in her grantee. Watk. Con. by Merrifield 41; Jickling Leg. Eq. Estates 362; 4 Dowl. R. 276; 9 Mass. 13. But in equity, if the widow is in possession, or is entitled to an assignment of dower immediately, the want of a mere formal assignment of dower is not considered material. And if she has received the income of the whole premises, either as guardian of the heir-at-law, or otherwise, she will, upon the taking of an account thereof, be entitled to retаin her third, although her dower has not been assigned. 1 P. Wms. 122. She has no right, therefore, in conscience or in equity, to deprive her creditors of the benefit of her right of dower, for the satisfaction of their debts, by continuing in possession with the heirs and neglecting to ask for a formal assignment; which assignment, and entry under it, would enable the creditors to reach it by execution.”
In Mutual Life Insurance Co. v. Shipman, 119 N.Y. 324; 24 N.E. Rep. 177, the New York court of appeals said:
“She had possession of the land under a consummate right of dower, of which she could enforce admeasurement. Although this right, while unassigned, did not give her a legal estate in the land, it is now well settled that it was a legal interest, and constituted property which was capable in equity of being sold, transferred and mortgaged by the dowress, and liable to be reached by creditors in payment of her debts. Tompkins v. Fonda, 4 Paige 448; Simar v. Canaday, 53 N.Y. 298; Payne v. Becker, 87 N.Y. 153; Pope v. Mead, 99 N.Y. 201; 1 N.E. Rep. 571; Bostwick v. Beach, 103 N.Y. 414; 9 N.E. Rep. 41.
“Such a right, although a mere chose in action, and constituting no legal estate in the land, is nevertheless one which
The doctrine of Tompkins v. Fonda, supra, was adopted by Vice-Chancellor Grey in Tenbrook v. Jessup, 60 N.J. Eq. 234. After refеrring to that case with approval, the learned vice-chancellor continued:
“It is distasteful to the law that a debtor should be permitted to have and enjoy assets which ought to be applied to the payment of debts, without recognizing that obligation. It is still more repulsive to the law that a debtor, having things in action, should avoid taking such a course as would apply them to the payment of his debts, and make conveyance of them without consideration while they have not yet ripened into legal assets, all for the purpose of avoiding the payment of debts, and thereby defeating creditors of their rights.”
See, also, Schuhardt v. Wittcke, 76 N.J. Eq. 119; affirmed, 78 N.J. Eq. 292. What a court of equity will compel a debtor to do to satisfy the just claims of his creditors, he may do voluntarily. A fortiori, then, should Mrs. Glaser‘s mortgage, voluntarily given for a valuable consideration, be sustained in equity as an assignment of her right to compel assignment of her dower.
It is contended that a dowress cannot convey her dower interest before assignment to anyone except to a terre tenant, or to one in privity of estate, and that a mortgagee is neither terre tenant nor in privity of estate. In 1 Washb. Real Prop. 251, it is said:
“The principle * * * that until assignment made, dower is not the subject of sale or conveyance, so as to vest legal title in the assignee or alienee and enable him to sue for it in his own name, is recognized in courts of equity as well as law. But where such sale or assignment is made, equity will protect the rights of the assignee and sustain an action in the widow‘s name for his benefit.”
And at page 252:
“The most she can do is to release it to someone who is in possession of the lands or to whom she stands in privity of estate; she cannot invest another with it. She cannot, therefore, mortgage it before it is assigned.”
I think it may be conceded that ordinarily a mortgagee would not be considered as either a terre tenant, unless he were in possession, or in privity of estate to the mortgagor. But a widow‘s dower right before the death of her husband is an inchoate right. She cannot convey it or mortgage it separately from her husband; that is, by her separate deed, but she can by joining with her husband in a deed or mortgage. She can, therefore, bar her dower prior to her husband‘s death and while the right is inchoate only. The reason given for denying the right of a widow entitled to dower consummate the right to convey, release or bar it, is that, although the title is perfect the estate itself is so nebulous, unascertained and indefinable that it cannot be the subject of a conveyance at law; but the inchoate right of dower is even more nebulous and of less stability as а property right or estate in land than is dower consummate before assignment. Dower consummate is a much more substantial right than dower inchoate. If a mortgage of her inchoate right of dower is valid and effective when made by joinder with her husband during his lifetime, then it would seem that after the death of the husband, when her right is consummate, and thus more substantial, her joinder with the heir in a mortgage should be just as valid and effectual as a bar to that dower right, at least in a court of equity. Prior to the death of the husband, he holds the legal title subject to the inchoate right of dower; subsequent to his death, the heir holds the legal title subject to dower consummate. In each case the mortgagee has become, in effect, a conditional grantee of the legal title. Although the mortgage is considered as security for a debt only, the mortgagee has a legal estate in the land after breach of condition. Woodside v. Adams, 40 N.J. Law 417. There would seem to be no reason in principle, therefore, why she should not be permitted to release her dower in conjunction with the heir after that dower becomes consummate, just as effectually as she could by joinder with her husband while the dower was inchoate. In the instant case, Harry Glaser had the legal title to an undivided one-third interest in the fee, subject to the dower right of Sarah Glaser. By virtue of Harry‘s mortgage, the mortgagee obtained a conditional grant of the legal title to his undivided one-third interest. It would seem clear, therefore, that at least to the extent of her dower right in this one-third interest her mortgage is good. If it is good, she is a mortgagor. If, as mortgagor, therefore, she made the improvements which have resulted in the enhanced value of the mortgaged premises, they of necessity inure to the benefit of the mortgagee. If both she and Harry made those improvements, the result is the same. It is unnecessary for me to decide whether or not her mortgage was good beyond her dower right in Harry‘s undivided one-third interest, for her improvements as mortgagor of her dower in one-third, are just as much improvements of the mortgagor as though she were mortgagor of her dower in the whole, and they none the less inure to the benefit of the mortgagee. Her dower interest before the improvements was practically nothing. The value of that interest at the time of the sale over and above what was due on the first and second mortgages was due almost entirely to the improvements made by the mortgagors, and the mortgagees have the right to subrogation to the rights of the mortgagors by reason of such improvements.
In Salem Bank v. White, supra, a mortgage on the unassigned dower interest of the widow was not sustained, and it is insisted that if that case is an authority at all in this proceeding, then the widow‘s mortgage here is invalid; also that she and not Harry made the improvements and consequently the mortgagees have no right to subrogation. But the Illinois decision is not binding on this court. It is approved only in so far as it seems to this court to be consonant with equity and justice, but its adoption in part does
Other arguments of counsel for the infant defendants will now be mentioned, not because I think there is any merit in them, but merely to indicate that they have not escaped my attention.
There is no estoppel against the banks and the lumber company because of the proofs submitted by them before the master which precludes the submission of the evidence which has been received on this application. Before the master, they proved merely the amount due on their respective mortgages and the order of their priority. They were not required to prove anything else. There was no other issue. Their notices to have their respective encumbrances reported upon admitted only the amount due and the priority of the first and second mortgages and those admissions only can be used as a basis of estoppel. It is true that they should have filed answers instead of notices to report, in view of the infant defendants (Rule 186), but they did nоt do so; and as practically all the subsequent proceedings were in some respects defective, the only safe and proper course is for the court to now retrace its steps to the point where the errors began and now do
It is also contended that the present position of the banks and lumber company is due to the negligence of their counsel, by which they are bound; that they have no right to open the decree except upon newly-discovered evidence and that they have had their day in court and should not be given another opportunity. It is true that ordinarily the negligence of counsel is the negligence of the client, but the rule should not be applied where it will work an inequity. True, these parties have had their day in court, but not on the issues tried out in this proceeding. Those issues were not raised before the master and they had no opportunity to try them there. This is not a new trial or a rehearing of a matter which has already been heard. Decisions such as In re Roberson, supra, do not apply here. The issues tried on this proceeding are new and could be raised only, under the pleadings, on an application for surplus moneys.
It will be seen that although the proceedings in this foreclosure suit were very irregular the proceeds of the sale were, with the exception of the share to which the infant Jeannette is entitled, properly distributed. Since that is so, there appears to be no good reason why those moneys should be paid into court only to be paid out again to the same parties who now have them. The complainant, as assignee of certain judgments, was the last distributee as shown by the sheriff‘s statement of distribution. As such he received more than enough to pay the share to which Jeannette is entitled. He will be required to disgorge to the extent necessary to pay her claim, and, as this whole controversy is the result of his mistakes and misconduct, or those of his solicitor, in the prosecution of the foreclosure suit, he must be required to pay the costs of this proceeding. He will be held to be primarily liable to respond to the decree in default of which other encumbrancer defendants who have already participated in the distribution will be held liable in the inverse order of the priority of their respective encumbrances.
I will advise a decree in accordance with these conclusions.