Decker v. Wilson , 45 N.J. Eq. 772 ( 1889 )

The opinion of the court was delivered by

Van Syckel, J.

The evidence clearly shows that the mortgagor owed the appellant, who was complainant below, the amount for which she took her mortgage.

The bond is dated December 1st, 1876, and a mortgage of'the same date was given to secure it.

That mortgage was not signed by mortgagor’s wife, and was taken up and a new mortgage given December 31st, 1878, to secure the bond of December 1st, 1876.

The mortgagor then owed only about $200, except a prior mortgage of $3,500 on the same premises. There is an absence of evidence to show that there was any fraud about this transaction in its inception, or that there then existed any purpose to protect the mortgagor against any indebtedness he intended to incur in the future.

The mortgagee took possession of the mortgaged premises under her mortgage, but she was liable to an accounting at the suit of creditors at all times. The fact that she continued in possession and permitted the mortgagor, who was her brother-in-law, to remain upon the premises and receive a considerable portion of the proceeds of the .farm, will not postpone her mortgage to debts subsequently incurred by the mortgagor. The extent of her liability to creditors will 'be to account for the proceeds of the premises as a credit upon her mortgage.

The complainant’s mortgage is valid. An account should be taken.

The complainant’s mortgage is $3,000; add interest from Decemba’ 1st, 1876, at seven per cent.; the complainant should be charged with the rents of the premises from January 1st, 1879, at $350 per year. From the rents deduct seven years’ interest paid on the prior mortgage of- $3,500, being $210 each year; also deduct taxes, at the rate of $37 per year’, for eight years; deduct, also, from complainant’s mortgage, payment endorsed March 20th, 1885, of $155; also deduct taxes paid on her mortgage for the years 1885, 1886' and 1887, being $27 each year.

There must be a reversal, and a reference to a master to take an account in accordance with the above statement, and to report priorities between the subsequent encumbrancers, as well as the amount due to each.

Decree unanimously reversed.