42 N.J. Eq. 547 | New York Court of Chancery | 1887
By the decree in this cause it was decreed (11 Stew. JEq. U¡,%¡) that the Long Dock Company should bear its proportion (with interest) of a certain payment of $500,000 made by the complainants to extinguish the outstanding title of the state in certain lauds assigned and conveyed to the New Jersey Railroad and Transportation Company, under a certain agreement made between the last-named company and the Long Dock Company, in a partition of lands by and between them; that the sum so to
The above-mentioned mortgage of 1863 (it is dated May 25th, 1863) was given by the Long Dock Company pending proceedings in this court for partition of the property known as Harsi-mus cove. Those proceedings were begun August 15th, 1857, and the Long Dock Company was a party thereto. There was a decree for sale of the property, made September 21st, 1862, under which it was sold, and it was purchased by Peter Bentley and Moses Taylor, as trustees, in trust, for. the beneficial owners ■of the property, and the premises were conveyed to them accordingly by deed dated August 24th, 1863.
The trustees conveyed away part of the property before the 10th of September, 1867, the date of the before-mentioned agreement, and, at that date, by that agreement, which was made by and betwesn the trustees, the parties who were beneficially interested as owners in the property at the time of the partition sale, and the ISTew Jersey Railroad and Transportation Company, which company appears to have acquired all the interests of ■those owners, except the Long Dock Company, it was agreed that the remaining property should be divided in a specified way between the ISTew Jersey Railroad and Transportation Company and the Long Dock Company, and should be conveyed to them ■accordingly. Conveyances were made in pursuance of the agreement by deeds dated October 1st, 1867.
By the agreement it was declared that the title of the whole tract divided between the two companies should, for the sake of ■convenience of division, be deemed equally good and valid, and •that if, at any time afterwards, either of the companies should be dispossessed of any portion of the tract conveyed to it or its assigns by virtue of the agreement, or should be put to any cost or expense in defending its title thereto, or in extinguishing any outstanding title or claim against such portion, the other company ■should bear its proportion of such loss and expense according to its proportion of interest in the entire property, which proportion of loss and expense should be a lien upon the part set off and
The lien of the complainants is superior to the mortgage of 1863. That mortgage, as already appears, was taken pending the proceedings in partition. When the property was sold under the decree in that suit, and bought in by the trustees, the legal title of the mortgagor was extinguished, and the mortgage attached (but in equity only) to the interest of the mortgagor in the property, which interest was then merely equitable. In the division under the agreement all the land alloted and conveyed was, for convenience of partition, regarded as being held by good title, and an equitable provision was made by mutual arrangement to secure the parties against loss by reason of such assumption. Without such arrangement, of course, the partition which was. made would not have been made. In that partition the Long Dock Company obtained its share in property of good title,, while, on the other hand, the other party received its share in land, with a title so defective that it .required a large expenditure of money to perfect it. The Long Dock .Company, therefore, but for the provisions of the agreement, would have had by so much the advantage of the railroad company in the partition. In order to prevent .such injustice on either side, and to protect each party in the premises, it was necessary, in such a partition, to make the arrangement which was made in the agreement in that behalf, or some such provision. The proceedings in partition were conducted in good faith, and the agreement also was made- and carried ®ut in good faith. .Under the circumstances, the-interest of the Long Dock Company, to which, in equity, the lien of the mortgage of 1863 attached itself, was the land obtained in the partition under the agreement subject to the lien for the payment to perfect the title of the land assigned and conveyed to the railroad company.
There is another consideration not without weight in this matter, viz., the fact that the agreement was made and acted upon twenty years ago, and that upon the faith of it the complainants expended the large sum of money, to secure the payment of which to them this suit was brought. In all the twenty years the mortgagees have accepted and have had the benefit of the arrangement. Had the claim for compensation been upon the. side of the Long Dock Company, those mortgagees would have been entitled to and could have claimed the benefit of it and of the lien given by the agreement.
In order to dispose of the exception based upon the allowance of interest upon the proportion of the costs of the defence in-the Winants suit, which, under the agreement, the Long Dock Company was bound to pay, the exceptants insisting that it should not have been allowed from any period earlier than the time of demanding payment of such proportion from the Long Dock Company, it is enough to say that the master followed the plain and explicit direction of the decree. The exceptions will be overruled, with costs.