47 N.J. Eq. 298 | New York Court of Chancery | 1890
The opinion of the court was delivered by
The decree for sale of the mortgaged land in the reverse order of the conveyances, and ordering the portion yet remaining in the mortgagor to be first sold, is correct according to the usual course of sales in equity of lands encumbered by mortgages.
The third parcel, being the two feet fronting on New York bay, is described as two feet northwesterly from high-water line in New York bay, and running on a line parallel to said high-water line, and two feet northwesterly therefrom &c. This' is clearly within the mortgaged premises as part of the upland. The further order for sale of the right, title and interest of the mortgagor to the land lying under water at the time of the mortgage and since, is too indefinite. Before,such sale is ordered, the eights of the mortgagee in the land that was submerged at the ■time the mortgage was given, and has since been reclaimed, should be established and defined, otherwise an unascertained interest will be sold, which would be unjust to all parties. The ■purchaser at such sale would buy an equitable estate and interest which could only be settled by a suit in equity. It would be contrary to equitable principles thus to invite further litigation, and make it necessary to bring the parties again before the court in ■other proceedings to determine rights wnich can be ascertained
At the time the mortgage was given the mortgagor was a-riparian owner, and, as such, he had the right of preemption and reclamation to the lands under water in front of his land's^ bordering thereon. These could not be taken from him by the state, through its agents, the board of riparian commissioners, until after six months’ notice in writing he should have neglected to apply for the grant or license, and neglected to pay, or secured to be paid, the price the said commissioners fixed. Rev. p. 984 § 8; Laws of 1869. He could apply to the commissioners for a lease, grant or conveyance, upon such a compensation therefor to be paid to the State of New Jersey, as should be determined' by the commissioners. Rev. p. 985 § 1; Laws 1871. These-rights he conveyed to the mortgagor as security for his mortgage-debt, who thereby became entitled to an equitable estate or interest therein.
The defendant, the Point Breeze Perry and Improvement Company, took the two feet strip above high-water mark, or theripa, subject to the mortgage, and the right of preemption and' reclamation of the land under water, also subject to the equitable-interest of the mortgagee. Boon v. Kent, 15 Stew. Eq. 131. But as those rights were imperfect and could only be made valuable and available to the mortgagor at the time the mortgage was-given by purchase of a lease or conveyance from the state, and reclamation of the land under water, the company which made-such purchase and improvement has the higher title and superior-right to be first paid the price of such purchase and- the value of the improvement. It appears that the rights o'f the mortgagee can be best ascertained and secured by declaring, the expense of purchasing the submerged land from the state, and of the reclamation of the land under water in front of the mortgaged lands,, to be a first lien, and the mortgage a second lien on the land which was below high-water mark at the time the mortgage was-given. The ascertainment of the rights of the mortgagee should be settled by the court before sale is made of this portion of the-
The decree should be', reversed, and modified to define more particularly the rights of the mortgagee, as above indicated.
For affirmance — None.
For reversal — The Chief-Justice, Dixon, Garrison, Mague, Scudder, Van Syckel, Brown, Cole, Smith — 9.
