119 N.J. Eq. 109 | N.J. Ct. of Ch. | 1935
The facts are stipulated as follows: May 30th, 1911, James L. Tower died seized of the premises described in the bill of complaint, leaving him surviving his widow and two children, Emma J. Van Gieson and Henry Bailey Tower. By his will duly probated, the decedent gave said property to his two children absolutely, subject to his wife's use during widowhood. After his widow's death a dispute arose between his daughter and son over their interests in the property and in July. 1931. they brought suits in this court, each against the other. Mrs. Van Gieson's suit was for partition and *110 Tower's suit was for a decree that his sister had no interest in the property. In both suits lis pendens were filed immediately. Answers were filed in both suits and the suits were consolidated and referred to a vice-chancellor for hearing. January 26th, 1933, a consent final decree was entered in Tower's suit against Mrs. Van Gieson and on the same date an order was entered discontinuing Mrs. Van Gieson's partition suit against Tower. The final decree in the suit of Tower v. Van Gieson recites an amicable settlement between the parties and adjudges and decrees that as of the date of filing the bill of complaint in that suit, Mrs. Van Gieson had an estate in or encumbrance on the lands in question, which interest is represented by a bond and mortgage covering the lands, for $6,000 bearing even date with the decree, given by Tower to H. Theodore Sorg, her solicitor, which mortgage "is a prior lien to any liens or encumbrances accruing against said premises since the filing of said bill of complaint and the notice of lis pendens herein" and further adjudges and decrees that so far as relates to any claim of Mrs. Van Gieson, Tower's title is determined, fixed and settled and declared to be good, subject to the mortgage before mentioned. The mortgage provided for in the decree was executed as of the date of the decree and was recorded February 1st, 1933; it is the mortgage under foreclosure herein.
March 28th, 1927, Richard J. Brown recovered a judgment against Henry Bailey Tower in the East Orange district court and docketed it in the Essex common pleas November 3d 1932. Brown assigned the judgment February 6th, 1933, to the defendant Barrett Investment Company, who issued execution thereon, whereunder the lands described in complainant's mortgage were sold to said defendant July 25th, 1933.
The bill to foreclose herein was filed November 2d 1933. It alleges the facts hereinabove set out and charges that the interest of the defendant Barrett Company is subject to complainant's mortgage and prays, in the usual form of foreclosure bills, that the defendant be decreed to pay complainant's mortgage debt or in default thereof be foreclosed of all equity of redemption and that the mortgaged premises be sold to pay the amount due complainant. The defendant's *111 answer denies complainant's right to have the priorities between them adjudged in a foreclosure suit and asserts that its rights are paramount to complainant's mortgage.
In support of the defendant's claim that a foreclosure suit is not a proper proceeding in which to litigate the claim of one who asserts a title paramount to the mortgagee, the following cases are cited: Wilkins v. Kirkbride,
The defendant claims priority because its judgment against Tower was docketed three months prior to the execution and recording of Tower's mortgage to complainant. When the judgment was docketed the record showed that under the will of James L. Tower the mortgaged premises were owned by Henry Bailey Tower and Emma J. Van Gieson as tenants in common and that lis pendens
had been filed more than a year prior to docketing the judgment, thereby giving notice that two suits were pending in this court in both of which Mrs. Van Gieson claimed title to or an interest in the premises in question. It is an ancient doctrine of this court that a decree of this court shall be binding not only on the parties to the suit but also upon those who claim through or under the parties pending the suit. The rule has been modified by the Lis Pendens act to the extent that notice shall be given of the pendency of a suit involving adverse claims in land and that constructive notice of such adverse claims shall be imputed to one acquiring a right or interest from a party to a pending suit, from the time the lis pendens is filed. Haughwout v. Murphy,