24 N.J. Eq. 426 | New York Court of Chancery | 1874
It is quite clear from the evidence in this case, that the sale of the mortgaged premises was brought about by contrivance and design on the part of Dimoek and Schenck, and that their object was to buy the premises in, discharged of Stiger’s mortgage. This, I think, cannot reasonably be doubted. It is also quite clear that Schenck was acting as
The complainant, Stiger, is entitled to a decree of foreclosure of his mortgage thus equitably re-established, and to-have the land sold to pay the amount due on it for principal, interest and costs.
The premises appear, by the evidence, to be abundantly sufficient to pay such amount, but if a deficiency should be found to exist, the defendants will be personally liable to make it good, in fulfillment of the several and respective covenants contained in the deeds. The rule in respect to the equitable obligations arising against grantees, from stipulations of this description in deeds, was laid dowm in Klapworth v. Dressler, 2 Beas. 62. Where a grantee in a deed covenants with the grantor to pay off an encumbrance subsisting on the premises, if the-grantor is personally liable for the payment of the encumbrance, the grantee, by virtue of the agreement, is regarded in equity as the principal debtor, and the grantor as a surety only. The Klapworth case undecided before the statute of 1866, which expressly authorizes-decrees in foreclosure suits for the payment by the parties-liable at law or in equity for any deficiency after sale of the-land, and the decision in that case had a special basis in the-fact there alleged and established, that the obligor in the bond was insolvent. The insolvency of Weeks, the obligor here, is not proved, but .it is not necessary to appear, since the above mentioned statute, in order to sustain the decree. The-statute is applicable to foreclosure- suits, and this suit being one to set up the mortgage and foreclose it, is within the statutory letter and spirit. It was- objected at the hearing,, that Weeks not being a party defendant, a decree could not be made for payment of a possible deficiency. I am unable to see how he can be considered a necessary party, if he might have been a proper one. Such an objection, taken at the hearing and not by the pleadings, or at an earlier stage-of the cause, will not prevail if the requisite parties are-before the court to enable it- to' finally dispose of the case»
1 shall advise that the complainant is entitled to the relief prayed for in the bill.