172 A. 510 | N.J. | 1934
The bill in this case was filed to foreclose a mortgage securing a bond of $3,000, dated December 26th, 1922, payable one year from the date thereof, given by one Ernest Rein and wife to Edward W. Brickner, who, on September 14th, 1931, delivered the bond and mortgage to one Louis Schaub, together with a paper-writing signed by him which stated: "Moorestown, N.J., September 14th, 1931. I, Edward Brickner, Sr., do hereby agree to give Louis Schaub power of attorney to handle to the best advantage with a mortgage I put in his possession for a loan of $2,400 he gave me this day, at the rate of six per cent. any time I am short in paying Louis Schaub his interest." The fact is not disputed that these documents were given to Schaub as security for money advanced to Brickner, as set forth in the signed statement, and that $800 of said amount was paid to him when the delivery was made. The Burlington County Traction Company obtained a judgment in the supreme court against Brickner and others, on July 15th, 1932, in the sum of $2,661.67. After execution had been issued, and returned unsatisfied, an order, in aid of execution, was made by the court on December 5th, 1932, appointing the present complainant *72 receiver of the property and things in action of Brickner, and particularly, among other things, of the bond and mortgage in question. At the time the receiver was appointed, there was due on said mortgage all of the principal, with interest from June 26th, 1932, it appearing that the interest had not been paid because same had been claimed by both Brickner and the receiver. The receiver then demanded payment from Rein, of both principal and interest, which was refused, and as a result, foreclosure proceedings were instituted, and Rein, the mortgagor, Brickner, the mortgagee, and Schaub, the assignee of the mortgage, were made party defendants. The bill alleges in part, that any interest which Schaub may have in the mortgage, is subject and subordinate to the execution of the trust company, and the lien and title of complainant, as receiver, while both Rein and Schaub, in their answer, deny that the receiver has any interest or title by reason of the delivery of same, with the paper-writing, to Schaub.
There was no material dispute as to the facts at the final hearing before the vice-chancellor, who dismissed the bill without prejudice to any right the receiver might have to institute another action. The final decree was entered accordingly from which this appeal is taken. The learned vice-chancellor stated in effect, when arriving at his conclusions, that the complainant had brought suit without having possession of the bond and mortgage in which the defendant Schaub's rights were prior to the receiver's; that the receiver would be entitled to any money realized on the security over and above the amount due Schaub, who had lawful possession of the bond and mortgage; and that the mortgagor did endeavor to pay the interest but was prevented because of the dispute between Schaub and the receiver, and further because of this it would be manifestly unfair and unequitable to the mortgagor, Rein, to subject him to foreclosure proceedings.
The respondents have rendered no assistance to this court in its consideration of this appeal, as they were not represented at the argument, and no brief has been filed in their behalf. The appellant argues that it was error to postpone *73
the lien of the execution creditor and title of the receiver to the claim of the defendant Schaub, as the evidence warranted a finding that any claim or title of Schaub was subordinate to the execution and title of the receiver. We find no merit in this contention, as the paper-writing delivered with the mortgage, which was not recorded, constituted a valid assignment in equity; and as the bond and mortgage was a chose in action, it could have been assigned by mere delivery, without writing, and still be good in equity. Bower v. Hadden Blue Stone Co.,
The decree of the court of chancery is therefore reversed, *75 and the case remanded to that court, in order that a decree may be made in accordance with the views herein expressed.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.