95 N.J.L. 104 | N.J. | 1920
The opinion of the court was delivered by
This suit was brought by the appellant against the respondent under the act of 1880 entitled “An act concerning proceedings on bonds and mortgages given for the same indebtedness, and the foreclosure and sale of mortgaged premises thereunder.'’ Comp. Stat., p. 3420.
The respondent, in September, 1916, borrowed of one Philip Goodell the sum of $5,000, and. for the purpose of securing the payment thereof, executed to him a bond and mortgage for that amount, payable September 15tli, 1918. Some two months after the execution of the bond and mortgage, and on November 21st, 1916, the respondent conveyed the mortgaged premises to one Miller, who, in turn, conveyed to Thomas F. Roach. The due day of the bond and mortgage having passed, and the mortgage debt still remaining unpaid, the appellant, Murray (who held the bond and mortgage under an assignment from Goodell), instituted foreclosure proceedings against Pearce, the maker of the bond and mortgage, and the several parties to whom the mortgaged premises subsequently passed. These proceedings were begun in January, 1919. After the time to answer had expired there was a reference t8 a master, and he reported that there was due on April 21st, 1919, upon the bond and mortgage, $5,165. Upon the coming in of the report a final decree was entered adjudging that this was the amount of the mortgage debt, and directing that a writ of
. The respondent set up, as a partial defence, that, in June, 1918, the mortgaged premises were damaged by fire; that they were covered by an insurance policy which was held by Goodell as mortgagee; that the company settled its liability under the policy by paying the mortgagee $1,594, who, in turn, paid it over to the owner of the property in order to enable him to make repairs; and that he, the respondent, was entitled on these facts to have the amount of the insurance money credited upon the decree for deficiency. The trial court held this defence valid, so far as it went, and directed the deduction asked for.
We think there was error in this bolding of the trial court. The fire occurred and the insurance money was paid some sir months before the foreclosure proceedings were instituted. The respondent was a party defendant in those proceedings. The averment of the bill was that the whole of the money to secure the payment of which the bond and mortgage had been given was then due-and owing. The respondent did not see fit to controvert that averment. On the contrary, he sat silent and permitted a decree to go against him adjudging that there was due to the complainant the whole amount of her claim, with interest. He knew at the time the foreclosure. was begun that the insurance money had been paid. Assuming that he was entitled to have it credited as a pajonent on the mortgage debt, the opportunity to do so was afforded him in the Chancery suit. His failure to raise the question in that suit cannot operate to relieve him of the adjudication of that court or destroy to any extent its legal effect. As between him and the present appellant the decree was res judicata on the question of the amount of the mortgage debt, and, he could
The judgment under review will be reversed.