Penn Mutual Life Insurance v. Semple, 38 N.J. Eq. 314

Penn Mutual Life Insurance v. Semple

38 N.J. Eq. 314 | New York Court of Chancery | 1884

The Chancellor.

The bill was filed to foreclose a mortgage held by the complainant on a factory or mill property. A controversy arose between the complainant and a judgment creditor, who had levied his execution on some of the machinery, as to whether the mortgage covered that machinery or not. It was decided in this court that it did not, and the judgment creditor was therefore at liberty to sell under his execution. He did so, and bought the machinery in himself. The complainant, having appealed from so much of the decree as is adverse to its claim to that machinery, now asks that the judgment creditor be restrained from disposing of it pending the appeal, and that a receiver be appointed. It appears to me quite clear that it is the duty of this court to grant the motion. The value of the property in question is large. The complainant must lose a large part of its debt if it cannot have recourse to it. The counsel who oppose this motion urge *315that inasmuch as the judgment creditor has been permitted by this court to proceed to sale under his execution at law, this court has no longer any control over the property, or if it has, it ought not, under the circumstances, to exercise it. But the property is still within the jurisdiction of this court. The title to it has been changed, it is true, by the judicial sale, but the j udgment creditor has bought it and still owns it. If the part of the decree appealed from be affirmed, he will have the property; if it be reversed, the complainant will have the benefit of it. When the property was sold the complainant had not appealed, but it had the right to do so. It not only was not then certain that the controversy between the parties was ended, but in fact it was not, as the sequel has proved. The sale was not ordered by this court, but the judgment creditor, being at liberty, so far as the judgment of this court was concerned, to sell the property, took the responsibility of doing so, and he did it subject to the right to appeal, and with the liability to such action in regard to it pending the appeal, while it should remain within the jurisdiction of this court, as to this court should seem proper. The question between him and the complainant, as to their respective rights to the property, has not yet been finally determined, and will not have been so until the appeal shall have been disposed of. He, however, should have security to protect him against loss by reason of this action of the court.