74 N.J. Eq. 336 | New York Court of Chancery | 1908
This is a litigated and complicated foreclosure, involving these questions: First, whether an outstanding interest in the mortgaged premises passed by way of estoppel when the mortgagors afterwards acquired title; second, whether distinct parcels of the mortgaged premises conveyed to third persons, who have
On December 9th, 1858, Sarah H. Shreve, Mary E. Harve3, Charlotte H. Biddle, and Elizabeth Harvey, tire younger, Peter E. Harvey, Amos E. Harvey, Thomas B. Harvey and William T. Harvey were seized in fee, as'tenants in common, of'a certain farm in the township of Mansfield, Burlington county, of which Peter Harvey, their father, had lately died seized. Peter Harvey died intestate, and the persons named were his children and heirs-at-law, each one being seized of an undivided one-eighth part of the farm, subject to tire estate in dower of their mother, Elizabeth IParve3r, the elder.
On the same day, December 9th, 1858, Sarah H. Shreve and Charles M. Shreve, her husband, Mary E. Harvey,' Charlotte H. Biddle and Israel Biddle, her husband, and Elizabeth Harvey, the younger, conveyed all their undivided half part of the farm to Peter E. Harvey, Amos E. Harve3^, Thomas B. Harvey and William T. PIarve3, by deed dated the same day, December 9th, 1858, and which was recorded March 21st, 1859, in the office of the clerk of Burlington county. After the deed was executed and delivered, the ownership of the farm was vested in Peter E. Harvey, Amos E. Harve3', Thomas B. Harvey and William T. Harvey, as tenants in common, each one of them being then seized of an undivided one-quarter interest therein. At this time Peter E. Harve}, Amos E. Harvey and Thomas B. Harvey were all of age, and William T. Harve3>- was a minor. On January 1st, 1859, Peter E. Harvey, Amos E. Harvey and Thomas B. Harve3, the three adult brothers, in order to secure the payment of a portion of the purchase price of the farm, executed to their sisters, Sarah PI. Shreve, Mary E. Harvey, Charlotte H. Biddle
The fact that William T. Harvey was under age at the time of the making of the mortgage by his adult brothers to his sisters did not absolutely incapacitate him from joining in the conveyance. He could have joined his brothers in the mortgage and ratified his act after he attained his majority. He must have been nearly of age at the time the mortgage was made, for on July 23d, 1861, he joined his mother, the widow, and his brothers, Peter E. Harvey, Amos E. Harvey and Thomas B. Harvey, in a conveyance of a portion of the mortgaged premises to George Black. He remained seized of the fee in an equal undivided one-fourth part of the premises until his death, until August 1st, 1889, and by his last will and testament devised the same to his brothers last named, whereupon -the mother having died on August 10th, 1880, and her estate in dower in the premises thereby having terminated, the three brothers became seized of the entire fee in the premises in these proportions: Peter E. Harvey, four-ninths; Amos E. Harvey, four-ninths, and Thomas B. Harvey, one-ninth, being the one-third of the one-third devised to him by his brother, William T. Harvey, he, Thomas B. Harvey, having on March 25th, 1868, conveyed his one-fourth interest to his brothers, Peter E., Amos E. and William T. Harvey.
It will be remembered that the complainants’ mortgage conveyed only the three undivided fourth parts of the premises described therein, and the first question is, did the outstanding undivided one-fourth interest in those premises come under the lien of the mortgage when the entirety of the fee vested in the mortgagors under the devise to them of that one-fourth by their brother, William T. Harvey, upon his death in 1889 ? That it did not, and that the complainants’ mortgage is still a lien only upon the three undivided fourth parts, and interest in the mortgaged premises is, to me, clear.
There was excepted from the mortgage a small tract expressed to be conveyed to William C. Taylor, mentioned as a lot adjoining Thomas Page’s lot. A conveyance of this lot to Taylor was made by the three brothers, the grantees of the mortgagees, on December 14th, 1858, and on the same date the same grantors 'made a deed to Richard Page for another portion of the mortgaged premises. The deed from the sisters to the brothers was recorded May 13th, 1860. The deed from the same grantors, the brothers, to William C. Taylor, was recorded April 6th, 1859. The deed to Page October 9th, 1860. The mortgage from the brothers to the sisters was recorded May 6th, 1860.
Besides the conveyances to Richard Page and William C. Taylor, there were conveyances made for other portions of the mortgaged premises, as follows: By Elizabeth Harvey, widow, Peter E. Harvey, Amos E. Harvey and Thomas B. Harvey, to Samuel Asay, May 1st, 1860; by the same parties, William T. Harvey joining them, to George Black, July 23d, 1861; by Peter E. Harvey, William T. Harvey and Amos E. Harvey to Mary Kirk-bride, March 31st, 1874.
It will be noticed, in passing, that the conveyance to Taylor was of an undivided three-fourths part of the premises; the same to Page; the same to Asay; while that to Black was of four-fourths, or the whole, and that to Kirkbride was for three-thirds, or the whole. No question is raised in respect of the quantum of the estate vested in any of these grantees.
The deed to Page was made December 14th, 1858, two weeks before the complainants’ mortgage, which was made January 1st, 1859, and recorded May 3d, 1860, while the deed to Page was not recorded until October 9th, 1860. The complainants claim that their mortgage is a lien against the property sold to Page because his deed was not recorded as required by law before the recording of the mortgage. The complainants also claim that their mortgage is a lien against the property sold to Asay because his deed was not recorded as required by law before the / recording of the mortgage. Asay’s deed bears date May 1st, 1860, three days before the recording of the mortgage, but the deed was not recorded until September 10th, 1860. The complainants also claim that their mortgage is a lien against the property sold to Black and Kirkbride because those two deeds were both given after the making and recording of the mort- ' gage. If the mortgage be a lien upon these tracts it would only be valid against the three undivided fourths interest in them,
However, the claims of the complainants concerning these tracts of land are not valid because it is admitted that none of the present owners in fee of the portions of the mortgaged premises described in these deeds, nor their grantors, had actual knowledge of the mortgage when the purchase of the lots was made and the improvements, which are many and valuable, were placed upon the grounds; that the mortgagees had every opportunity to witness the improvements while being made, as they lived in the neighborhood; that the present owners and their grantors have been in possession since the time of the conveyances above mentioned, continuously and without any actual knowledge of the mortgage, until either a short time before or at the beginning of- these foreclosure proceedings; that none of them have ever paid any interest upon or in any way recognized the existence of the complainants’ mortgage; that neither the mortgagees nor anyone representing them ever made demand upon the owners in fee of these lots, or their grantors, for anjr payment on the mortgage by way of principal or interest; that the mortgagees never gave notice to any of the owners of the tracts, or their grantors, when the houses and buildings were being erected, or to any occupant of the premises, that they claimed any lien by mortgage encumbrance or otherwise upon any of these tracts; that the owners of the tracts in fee, and their grantors, have had the exclusive and notorious possession of the lands, and have collected for their own use and enjoyment all the rents, issues and profits thereof; have paid the taxes upon the lots and have exercised in every particular all the usual acts of ownerships over the same; that no entry has been made upon any of these several tracts by any holder of the mortgage.
Thus it will be seen that the present owners of these tracts, and their predecessors in title, have been for more than twenty years in the full, exclusive and actual possession of these distinct parcels of the mortgaged premises without admitting the title of the mortgagees, with no claim for principal or interest having
On February 2d, 1891, Thomas B. Harvey conveyed his undivided one-ninth interest in the mortgaged premises to his brothers, Peter E. Harvey and Amos E. Harvey, and they thereupon became seized of the entire fee in these proportions, namely, Peter E. Harvey an undivided live-ninths part and Amos E. Harvey an undivided four-ninths part.
On February 7th, 1891, Peter E. Harvey and Amos E. Harvey executed a mortgage on the premises in question to the Mount Holly Insurance Company to secure the sum of $1,500. On April 29th, 1895, the Mount Holly Insurance Company assigned this bond and mortgage to Thomas Antrim, who died intestate, and whose administratrix, Annie E. Antrim, is now in possession of the bond and mortgage and entitled to realize upon it. This mortgage describes the same lands as are in the complainants’ mortgage, the courses and distances being the same, excepting thereout, however, the lots sold to George Black, William C. Taylor and Mary Kirkbride, three in number.
On March 26th, 1895, Peter E. Harvey and Amos E. Harvey executed a mortgage on the premises in question, together with other lands, to Shreve Antrim, to secure the sum of $4,000. Shreve Antrim died leaving a last will and testament, of which Charles Ewan Merritt, Esquire, is the executor, and who is now in possession of the bond and mortgage and entitled to realize upon it. This mortgage described the same lands as are in the complainants’ mortgage, with the addition of a tract which the Harveys purchased July 10th, 1869, which joins the former tract, and is merged in the description. Out of this mortgage are expressly excepted the lots sold to George Black, E. H\ Page, William C. Taylor and Mary Kirkbride, four in number.
On January 29th, 1903, Peter E. Harvey and Amos E. Harvey executed a mortgage on the premises in question, together with other lands, to Thomas B. Harvey, to secure the sum of
Each of these three mortgages of February 7th, 1891, March '26th, 1885, and January 29th, 1903, conveyed the entire fee in the farm, subject to the lien of the complainants’ mortgage on the undivided three-fourths of the premises.
All of the sisters, the holders of the bonds and the original mortgagees, are dead, and all of the brothers, the owners of the fee and three of whom were the original obligors and mortgagors, are dead, except Amos E. Harvey, who was one of the owners of the fee and one of the originaTobligors and mortgagors.
It becomes important now to ascertain who, are the present holders and owners of the bonds, and who are, therefore, commensurately interested in the original mortgage, for the purpose of deciding who are entitled to the proceeds of the sale to be made of the mortgaged premises, and also for the purpose of deciding another question, namely, that of merger, which has been raised as to certain interests in the mortgaged premises.
The bond given to Sarah IÍ. Shreve is now owned by the complainant Joanna Shreve, and there is due thereon the principal sum of $500 with interest at six per cent., from March 9th, 1897. The bond given to Charlotte H. Biddle is now owned by the complainant Elizabeth B. Conrow, and there is due thereon the principal sum of $875 with interest at six per cent., from April 1st, 1890. The bond given to Elizabeth Harvey is now owned by the complainant John II. Hutchinson, her administrator cum testamento annexo, and there is due thereon the principal sum of $2,693 with interest at six per cent, from January 1st, 1900. The bond given to Mary E. Harvey is now owned by the following persons and in the following proportions: Complainants Joanna Shreve, Mary H. Biddle and Elizabeth B. Conrow, one-tenth part each; the defendants Amos E. Harvey and
It would be to no purpose to trace the various steps by which the persons just named became entitled under the will of Mary E. Harvey, deceased, to her bond in the proportions just set out.
Amos E. Harvey»is the only original mortgagor still living. The premises in question, it will be remembered, were owned by him and his brother, Peter E. Harvey, at the time of the latter’s death pending this suit. He, Peter E: Harvey, died intestate, and his interest in the mortgaged premises descended to his lieirs-at-law, who are his brother, Amos E. Harvey, and his nephews and nieces, Joanna Shreve, Caleb E. Shreve, Mary H. Biddle, Elizabeth B. Conrow, Thomas E. Harvey and John S. C. Harvey.
The surviving brother and nephews and nieces of Mary E. Harvey just named, are, as above stated, the owners of interests in the bond of Mary E. Harvey in the proportions mentioned, as well as being owners of the fee of the mortgaged premises.
In this situation of affairs the defendants Annie R. Antrim, administratrix of Thomas Antrim, deceased, who is the holder and owner of the bond and mortgage made by Peter E. and Amos E. Harvey to the Mount Holly Insurance Compaq, February 7th, 1891, and Mr, Merritt, the executor of Shreve Antrim, who is the holder and owner of the bond and mortgage made by Peter E. H^vey and Amos E. Harvey to Shreve Antrim, March 26th, 1895, contend that such interest in the mortgage formerly owned by Mary E. Harvey as is owned by her beneficiaries above mentioned are merged into their legal title to the property by reason of their ownership of portions of the fee in the lands. No such contention is set up in behalf of the mortgage of 1903, given by Peter E. and Amos E. Harvey to Thomas B. Harvey.
When the Mount Holly Insurance Company took its mortgage from Peter E. Harvey and Amos E. Harvey (February 7th, 1891), it is presumed to have taken it wjth reference to the record title whiph disclosed the existence of complainants’ mort
When the other mortgage, the one to Shreve Antrim,"was made, Mary E. Harvey was dead, and her sister, Elizabeth Harvey, who was the beneficiary of her estate for life, was still living, and upon her death, by the will of Mary E. Harvey, her, Mary E. Harvey’s, interest in her bond went to her brothers and sisters and children of deceased brothers and sisters, share and share alike. Her brother, Peter E. Iiarvey, was living at her death and inherited a beneficial interest in her bond, which has since passed to his surviving' brother and nephews and nieces. A search of the records at the time this last-mentioned mortgage was given would have disclosed the existence of the complainants’ mortgage, and an appropriate search and investigation would also have disclosed the death of Mary E. Harvey and the interests of her brothers, nephews and nieces in her share of the first bond and mortgage.
While the doctrine of merger can be urged against the beneficiaries of Mary E. Harvey with reference to the Shreve Antrim mortgage with much more effect than as against the mortgage of the Mount Holly Insurance Company, by reason of the facts just stated, still, I am also against" the view that there has been any merger with reference to the Shreve Antrim mortgage.
If the Harveys had paid off their indebtedness to their sisters,
Directions will now be given as to the form of the decree, as follows: The whole of the mortgaged premises, or so much thereof as may be necessary, will be sold to raise and satisfy, in the first place, the bonds given to the sisters out of the three-fourths part of the proceeds of sale, to be distributed as fol-tows: To Joanna Shreve (on the bond given to Sarah H. Shreve) the sum of $500, with interest at six per cent., from March 9th, 1907; to Elizabeth B. Conrow (on the bond given to Charlotte H. Biddle) the sum of $875, with interest at six per cent., from April 1st, 1900 ; to John H. Hutchinson, administrator cum tesiamenip annexo (on the bond owned by Elizabeth Harvey), the sum of $2,693, with interest at six per cent., from January 1st, 1900; to Joanna Shreve, Mary H. Biddle and Elizabeth B. Con-row, Caleb E. Shreve, Thomas E. Harvey and John S. C. Harvey, one-tenth each, and Amos E. Harvey and Thomas E. Harvey, administrator of Peter E. Harvey, deceased, one-fifth each (on the bond given to Elizabeth Harvey) of the sum of $3,143, with interest at six per cent., from January 1st, 1900. If sufficient money is not raised to pay these bonds in full, tire distribution will be made pro raid. In the second place, the mortgage of the Mount Holly Insurance Company out of the one-fourth portion of the proceeds of sale; in the third place, the mortgage of Shreve Antrim out of the one-fourth portion of the proceeds of sale; in the fourth place, the mortgage of Thomas B. Harvey out of the one-fourth part of the proceeds of sale. If any deficiency
The complainants’ taxed costs and a counsel fee, to be ascertained according to rule 224 of this court, will be paid out of the three-fourths portion of the proceeds of sale, representing the first and original mortgage, before any payment is made upon the bonds secured by that mortgage. The taxed costs of answering defendants, mortgagees, will be added to the amounts provided for them in the decree and paid out of the proceeds of the sale of the one-fourth part of the premises, or out of the surplus of the proceeds of the three-fourths part, if any there be, and any deficiency remains in the payment of the defendants’ mortgages.
The complainants’ counsel has asked- for a special allowance by way of counsel fee. I regret that I cannot comply with his request. By the ninety-first section of the Chancery act (P. L. 1902 pp. 510, 540), it is provided that the counsel fee in foreclosure suits to be included in the complainants’ taxed costs shall be such percentage, not exceeding five per cent, of the amount decreed, as the chancellor may by general rule, from time to time, prescribe. Rule 224 was promulged in pursuance of this statutory direction, and, as it makes no distinction between litigated and ex parte foreclosures; it comprehends both classes. This I' regret, for, in the present instance, I would recommend an allowance for complainants’ counsel. He has rendered important services, not only to the complainants but to the defendants, in clearing up the title to the lands in question and procuring a decree for their sale and the satisfaction of the various liens above mentioned, and for this reason no costs will be allowed any of the defendants who have successfully answered the complainants, that is, those defendants who own the lots which have been exonerated from the lien of the mortgage. Counsel for the complainants must look to his clients for his extra allowance in this cause. That he is entitled to an allowance is clear (Strong & Sons v. Mundy, 52 N. J. Eq. (7 Dick.) 833), and if I were at liberty to award it-I would hear the parties on the question of