53 N.J. Eq. 584 | New York Court of Chancery | 1895
The complainant in this case is the purchaser, at sheriff’s sale under foreclosure proceedings, of a portion of the premises covered by a mortgage, and a portion of the premises directed to be sold by the execution in these foreclosure proceedings. By force of this sale, the complainant, under the decree and foreclosure, has succeeded to the rights of the parties to the suit, complainant as well as defendants, in this portion of the mortgaged premises, and, so far as appears by the bill, is the only
The second ground of demurrer is based on the complainant’s failure to state whether all of the mortgaged premises were sold at the foreclosure sale, what was paid at the sale, and what re
In the present case, the complainant, as mortgagee, may require the defendant, as mortgagor of the particular portion of the entire mortgaged premises in which they and they alone are interested, to redeem so much of the entire mortgage as may be equitable, but, as the complainant’s bill shows that the defendant’s title has the equitable benefit of the appropriation of the remaining lands to the payment of the mortgage debt, the bill, in order to state an equitable cause of action, must allege that the mortgage debt has not been satisfied by the sale of the remaining lands, and that the value of the remaining lands is not sufficient to satisfy it. An amendment will be allowed for this purpose.
The third and fourth causes of demurrer attack the complainant’s right to require the sum he paid for the premises at the foreclosure sale to be the measure of defendant’s obligation to free her property from the lien of the mortgage. But under the general prayer for relief, the court will adjust the amount to be paid for the redemption upon an equitable basis, and the claim of complainant to the payment of this specific sum is not ground for general demurrer. The court will determine, on the proofs in the cause, how much should be credited on the mortgage on account of the remaining lands, following in this respect its practice in cases where the mortgagee has purchased the mortgaged premises under sale on judgment recovered on his bond. Lydecker v. Bogert, 11 Stew. Eq. 136 (Chancellor Runyon, 1884).
The second cause of demurrer is therefore sustained, and the other causes overruled.