Mutual Benefit Life Insurance v. Jackson , 31 N.J. Eq. 50 ( 1879 )

The Chancellor.

This is a suit for foreclosure and sale of mortgaged premises. The mortgage was given by Abraham S. Jackson while he had the legal title to the property, and the amount of the principal which it was given to secure was advanced by the complainants to him to enable him to purchase the property, under a foreclosure sale on a mortgage held by them and given to them by Ereytag and wife, and all of it was used for the payment of the amount due the complainants on the execution, which greatly exceeded it. The answer of the defendants Ereytag and wife, admits the making of the mortgage in suit, and states the fact of the existence of an action brought by Ereytag, after the making of the mortgage, to recover the property from Jackson on the ground that the latter held it in trust for him, and that that suit had resulted in a decree in favor of Ereytag, in which the complainants’ mortgage was declared to he a lien on the mortgaged premises for the ^principal thereof only, and insists that there should be no decree for interest. Eb opinion was written or report made by the master to whom the cause was referred for an advisory opinion. The bill did not pray relief against the complainants’ mortgage, and, though the decree does indeed declare that that mortgage shall be a lien for the principal thereof, it was as between Jackson and the Ereytags, and not as against the complainants. The design was to fix the amount of encumbrance which, as between Jackson and the Ereytags, should be left upon the property. The interest was, as between them, to be paid by Jackson, but the complainants have a lawful and equitable lien for both interest and principal not affected by that decree, and there will be a decree in this suit accordingly.