Alexander v. Manza , 142 N.J. Eq. 680 ( 1948 )

The bill is for discovery in aid of an execution at law issued upon a judgment for a deficiency arising from the foreclosure of a mortgage given to secure a bond. The answers allege the inability of defendants to protect themselves by bidding the fair value of the lands at the foreclosure sale; that complainant was the purchaser, and the lands are now and have always been worth more than the amount remaining due on the bond and mortgage; and that defendants are in equity and good conscience entitled to credit for the true value of the lands, and to a dismissal of the bill because such credit would exceed the amount of the judgment. The appeals are from the denial of motions to strike out the defenses thus pleaded. This judicial action was erroneous.

The case is ruled by Natovitz v. Bay Head Realty Co.,142 N.J. Eq. 456. In the respects indicated the answers are exceptionable.

The orders are accordingly reversed, with costs; and the cause is remanded for further proceedings not inconsistent with this opinion.

For affirmance — SCHETTINO, J. 1.

For reversal — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, JACOBS, WELLS, DILL, FREUND, McLEAN, JJ. 13.