Kocher v. Kocher , 56 N.J. Eq. 545 ( 1898 )

Pitney, V. C.

The complainant, being interested in the premises as life tenant, and, being obliged to pay the mortgage in order to protect her life estate, was clearly entitled, upon such payment, to be subrogated to the rights of the holder of the mortgage. In fact, she became the beneficial holder by virtue of the payment. On the case presented, the fact that she, through inadvertence and ignorance, canceled the mortgage of record, does not alter her right. Coudert v. Coudert, 16 Stew. Eq. 407. It could only take effect against her by way of estoppel, and the case made by the bill discloses no room for the operation of that principle. Nobody has changed his position or acquired any rights based on the idea that the mortgaged premises were free and clear of the mortgage in question. The right of the widow is to so much of the money in the hands of the trust company as represents the amount which was due upon the mortgage at the death of the testator. From that time on she was bound by her position as a tenant for life to keep the interest down. Twenty years have not elapsed since she made the payment, and there was no occasion for her to sooner assert her rights. Irick v. Clement, 4 Dick. Ch. Rep. 590.

The demurrer must be overruled.