79 N.J. Eq. 103 | New York Court of Chancery | 1911
1 am convinced tliat the several cross-complainants, who, as purchasers of lots forming part of the mortgaged premises, seek to avail themselves of the benefit of the covenant touching releases contained in complainant’s mortgage, are entitled to the relief sought b3r them.
In reaching this conclusion, I think it unnecessary to attempt to define any general rule to control cases of this class. As it is clearly within the power of a mortgagor and mortgagee to covenant that releases may be procured by the vendees of the mortgagor and that such releases may be procured by purchasers after default in the payment of the mortgage has occurred, it necessarily follows that the result of every controversy of this nature must be largely dependent upon the special circumstances of the ease.
In the present case, the covenant contained in the mortgage is as follows:
“It is hereby expressly agreed that portions of the above-described premises shall and may be released from the operation of this mortgage upon the payment to said party of the second part the sum of fifty dollars for each and every lot so released; said lots being designated on a certain map or plan of said above-described premises entitled ‘Map of building lots in Ventnor City, N. J., owned by Wheelock Company, by E. D. Rightmire, City Engineer, Ventnor City, N. J.,’ which said map is duly filed in the clerk’s office of said Atlantic county, or intended so to be.
“All sums paid for said releases shall be applied on account of the aforesaid debt of forty-one thousand three hundred dollars, and a certain mortgage owned by Camden, Atlantic and Ventnor Land Company to secure the payment of fifty-eight thousand seven hundred dollars and deducted therefrom.
“Whereas the Camden, Atlantic and Ventnor Land Company holds a mortgage of fifty-eight thousand seven hundred dollars, which is a prior lien to this mortgage, and whereas the holder of said mortgage has agreed to release any lot or lots from the lien of said mortgage at any time for the sum of forty dollars, for each lot so released, it is agreed rhat upon the payment of the sum of forty dollars for each lot released from the lien of said first mortgage that the holder of this mortgage will release such lots for the sum of ten dollars per lot.”
This covenant can be adequately understood only when considered in connection with the circumstances surrounding the transaction at the time the mortgage ivas executed. Ten dollars
It will also be observed that the covenant in question is not limited as to time. 1 think it clear that when a covenant of that nature and for that purpose is not restricted as to time, the right to releases for lots sold in good faith prior to default in reliance by the mortgagor upon the covenant will continue after default or even after foreclosure proceedings are begun. It may well be doubted whether such a covenant could be properly held to eonteinplate sales made after foreclosure proceedings had been instituted, or even after default, but I see no reason why redemption cannot be properly made by a purchaser whose purchase was made prior to default. I think the views here expressed may be said to be in harmony with the decisions which have been brought to my attention. See Vawler v. Craft, 41 Minn. 14; Gammel v. Goode, 103 Iowa 301; Lane v. Allen, 162 Ill. 426; Bartlett Estate Co. v. Fairhaven Land Co., 94 Pac. Rep. 900; Baldwin v. Benedict, 111 Iowa 741; Pierce v. Kneeland, 16 Wis. 706; Squire v. Shepard, 38 N. J. Eq. (11 Stew.) 331; Hall v. Home Building Co., 56 N. J. Eq. (11 Dick.) 304; Avon-by-the-Sea Co. v. Finn, 56 N. J. Eq. (11 Dick.) 805; Americm Net and Twine Co. v. Githens, 57 N. 3. Eq. (12 Dick.) 539; 27 Cyc. 1415, 1416. All of the sales of lots here in question were made prior to the time when the mortgage became due.
As already stated, the covenant of release contemplates that $40 per lot shall be paid to the first mortgagee at the time releases are exacted from complainant. That part of the covenant is of importance to complainant, as it reduces the amount of the prior encumbrance. It necessarily follows that releases cannot be exacted of complainant unless similar releases can at the same time be procured from the first mortgagee by the payment of the amount named.
The cross-bill of the Camden Safe Deposit and Trust Company, as trustee under the third mortgage, seeks the procurement of releases of lots at the rate of $10 per lot from the lien of complainant’s mortgage by reason of the payment of $5,000 made to complainant pursuant to the terms of the third mortgage already referred to. I think it clear that releases cannot be required by reason of that payment. Under- the provisions of the release covenant complainant cannot be required to release a lot for $10 unless $4-0 are at the same time paid to the first mortgagee for a release of the lot. There was paid to the first mortgagee of this
I will advise a decree in accordance with the views herein expressed.