Hendry v. Quinan , 8 N.J. Eq. 534 ( 1851 )

The Chancellor.

The plea states, that the judgment of. John Davis, recovered in 1841, is unsatisfied, and a lien on the premises. The mortgage, then, on which the bill is filed is a second incumbrance, and Whittaker’s judgment is the third and last incumbrance. The second incumbrancer, the mortgagee, the complainant in this case, took his mortgage subject to the judgment of John Davis, and has a right to proceed on his mortgage, subject to that judgment, and without making Davis a party defendant ; and the subsequent incumbrancer, Whittaker, has no right to say he shall not so proceed.

If Whittaker claimed that the judgment in 1841 was satisfied, he might have such an interest in preventing the second incumbrancer, the complainant in this case, from proceeding in such a way that the property would be sold subject to the judgment in 1841. It might bring enough, sold subject to the first incumbrance, to satisfy the complainant, and not enough to satisfy him; and there might be collusion between John Davis and the complainant to the prejudice of Whittaker, to have the land sold subject to Davis’s judgment, and thus defeat Whittaker’s claim, when there was really nothing due on Davis’s judgment. The Court might in such case, upon proper allegations by Whittaker, direct Davis to be made a defendant.

But on the statement in the plea that Davis’s judgment, the first incumbrance, is still an incumbrance, Whittaker cannot oblige the complainant to make the first incumbrancer a party.

Plea overruled.