33 N.J. Eq. 436 | New York Court of Chancery | 1881
This cause and two others (foreclosure suite) stand as on demurrer, by order of the court, upon the claim aiid prayer of the bills for a personal decree for. deficiency, which is sought, in two of them, against a person who assigned to the complainant the bond which the mortgage was made to secure, guaranteeing payment. In the other it is prayed against the obligor in the bond, to secure payment of which the mortgage was made. In the two eases first mentioned, the mortgages were given in 1873, and in the last the mortgage was given in 1875. The question is whether, in view of the provision of the first section of the act “ concerning proceedings on bonds and mortgages given for the same indebtedness, and the foreclosure and sale of the mortgaged premises thereunder” (P. L. of 1880 p. 865), this court has jurisdiction to make such decree. That section is as follows:
“ In all proceedings to foreclose mortgages hereafter commenced, no decree shall be rendered therein for any balance of money which may be due complainant over and above the proceeds of the sale or sales of the mortgaged property, and no execution shall issue for the collection of such balance under such foreclosure proceedings.”
The next section is as follows:
“ In all oases where a bond and mortgage has or may hereafter be given for the same debt, it shall be lawful to proceed first to foreclose the mortgage, and if, at the sale of the mortgaged premises under said foreclosure proceedings, the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency ; and that in all suits on said bond, judgment shall be rendered and execution issue only for the balance of debt and costs of suit.”
The third section is as follows:
“If, after the foreclosure and sale of any mortgaged premises, the person who is entitled to the debt shall recover a judgment in a suit on said bond for any balance of debt, such recovery shall open the foreclosure and sale of said premises, and the owner of the property at the time of said foreclosure and sale may redeem the property by paying the full amount of money for which the decree was rendered, with interest to be computed from the date of said decree, and all cost of the proceedings on the bond; provided, that a suit for redemption is brought within six months after the entry of such judgment for the balance of the debt.”
I have quoted the second and third sections because it is insisted by the complainant’s counsel that the court should, in construing