65 N.J. Eq. 738 | N.J. | 1903
The opinion of the court was delivered by
Upon a bill filed to foreclose a mortgage given by the defendant to the complainant, a decree pro eonfesso was entered against the defendant and an order of reference made to a master “to ascertain and report the amount due to the said complainant for principal and interest upon the mortgage held by it upon the premises mentioned and described in the said bill of complaint.”
A final decree having been made for the amount so reported to be due, the defendant exhibited to the court of chancery his petition setting out the above facts, and praying that before the sale of the mortgaged premises to satisfy such decree it be opened and corrected so as to make it conform to the interlocutory decree and the order of reference that had been made in the cause.
An order to show cause, with the required stay, was in the first instance allowed, but this subsequently was discharged by the order of the court, “without prejudice to the defendant’s right to renew the application after the sale of the premises,” the proceedings under the writ of fieri facias to be no -longer stayed. •
From this order the defendant has appealed, upon the ground that the merits of his application for the correction of the final decree ought to be passed upon before its execution. ■
To this it is replied that the order is one that is not appeal-able; that the defendant, by permitting an interlocutory decree to be taken by confession, is bound by the order of reference -made thereunder; that his application is addressed solely to .the discretion of the chancellor and is, at most, a matter of grace, • to be granted only upon equitable terms as to redemption, which are not tendered'by the'petitioner.
We think that the order is- appealable. In effect,'it denied to the defendant the right to have an erroneous decree cor
In the orderly course of a foreclosure suit, the right of the owner of the equity of redemption to have the debt for which the property is pledged definitely ascertained and declared before the mortgaged property is sold to satisfy it, is of the very essence of the proceeding. At no time is it a mere matter of grace, unless by Ms own conduct the debtor has made it so. In the present case the defendant had done nothing to vary or forfeit Ms rights in this respect. Pie had a right to assume that the decree that went against him by confession would follow the prayer of the bill and the terms of his mortgage, and if he be deemed to have consented to the order of reference that was in fact made, and to such final decree as might be based thereon, such consent would conclude him only to a report and to a decree that were within the four corners of such reference. He was not bound to anticipate that the master would report upon matters that had not been referred to him. The case stands, therefore, in effect, as if the proposition was to hold back the master’s report until after the sale of the mortgaged premises, and then, by final decree, to fix the amount for which the property had been pledged. This situation, which was brought to the attention of the court of chancery by the defendant’s petition, resulted in nowise from any wrongful conduct upon his part, but solely from the unwarranted act of the master in traveling outside of the plain terms of the reference that had been made to him. It was the defendant’s right to have this misconduct corrected and the cause restored as if it had never occurred. He was not obliged to tender terms, for he was asking for no favors; neither was he required to demonstrate to the court that it would be. beneficial to him to have his rights respected. Being free from fault, the merits of his application
The appeal from the final decree has, for obvious reasons, not been -considered. The defendant pursued the proper course in bringing the matter to the notice of the court in which the cause was pending. We are dealing now with the action of the court below upon such application, and not with the final decree, which it is still holding under advisement.
The order discharging the order to show cause must be set aside and the cause be remitted, to be proceeded with from that point in the court below, in accordance 'with the views herein expressed.
For affirmance — None.