Berlin Building & Loan Ass'n v. Clifford , 30 N.J. Eq. 482 ( 1879 )

The Chancellor.

The question presented is whether the complainant, a second mortgagee, shall be required to pay the execution fees on the sale of the mortgaged premises in this suit. The property was sold under the execution to pay, first, the defendant, Kate Clifford, the amount due her on her mortgage, which was the first encumbrance on it, and then to pay the complainant the amount due on its mortgage. At the sale it did not bring enough, after deducting execution fees, to pay the first mortgagee the amount due her. She insists that the complainant should be required to pay those fees as costs incurred by it, and which it is, therefore, under the circumstances, bound to pay. The first mortgagee was made a party to the suit in respect of her mortgage. She appeared and proved her debt, and there was accordingly a decree in her favor in the suit. She might, had she seen fit to do so, have declined to appear, and had she done so she would not have been affected by the suit. Hudnit v. Nash, 1 C. E. Gr. 550. In that case the execution fees must have been paid by the complainant unless raised out of the property, which would have been sold subject to the first mortgage. But the first mortgagee chose to come in and have the advantage of the suit. She consented to the sale. The sheriff had a right to retain his execution fees out. of the sale as against her.