Citation Numbers: 40 N.J. Eq. 313
Judges: Magi
Filed Date: 6/15/1885
Status: Precedential
Modified Date: 10/16/2022
The opinion pf the court was delivered by
In addition to the facts stated with great particularity and accuracy in the foregoing conclusions of the learned vice-chancellor who heard this cause, the following facts are deserving of consideration:
On July 14th, 1868, when Bispham obtained a judgment on his bond made by Charles P. Edwards, the latter was the owner of the mill-gite of fifteen acres, and of another tract of twenty-one acres. The mill-site was mortgaged to Bispham to secure the same bond. Therefoi’e, after July 14th, 1868, Bispham held, to secure the same debt, a mortgage on the mill-site, and a judgment which was a lien on that land, and also on the tract of twenty-one acres.
On September 7th, 1871, Edwards being still the owner of both tracts, conveyed the tract of twenty-one acres to Sloat and Mendon by a deed containing full covenants.
The respondent has become the owner of most of the tract of twenty-one acres by divers mesne conveyances under that title.
When the Bispham mortgage was foreclosed neither the respondent nor anyone interested in the tract of twenty-one acres was made a party, or notified of the proceeding. At the commencement of that foreclosure the Bispham judgment appeared to be satisfied of record.
Under these circumstances it is obvious that respondent has an equity, which a court of equity must, if possible, give effect to. When the land which she now owns was conveyed by Edwards, the purchasers, and those who subsequently acquired their title, became entitled in equity to have the debt which Edwards owed Bispham first made out of the mill-site, which was mortgaged to secure it, and which remained Edwards’s property.
This equity has not been lost by any act or default of respondent, or of those under whom she claims. They have not had an opportunity earlier to invoke it. No notice of the Bispham foreclosure was given to them. There was no reason why they should intervene therein to preserve their equity, for at that time the judgment was apparently satisfied, and no longer a lien on their property. When the satisfaction was vacated, and the judgment re-instated, it was done without any notice to her or them.
Nor is there any obstacle to her relief from any superior equity in the other parties to this controversy. They hold the title of Edwards, and have acquired it with full notice of the lien of the mortgage, and with constructive notice of the facts out of which respondent’s equity arose. Herbert v. Mech. B. & L. Assn., 2 C. E. Gr. 497.
Respondent is therefore entitled to such relief as will preserve her equitable rights.
The decree below gave her relief by requiring the release of her land from the lien of the judgment. In my view the relief
My conclusion is, that the defendants beloAV should have the option of having such a sale made, if they desire, and to that end that the decree should be modified, and should direct that unless the defendants below shall make and deliAer the release, which the decree now requires to be made and delivered, Avithin thirty days from service of a copy of the modified decree, then the mill-site comprised in the Bispham mortgage should be resold as prayed for in respondent’s bill of complaint.
The appeal Avas put on grounds involving the Avhole decree, and did not raise the question of the modification now thought proper to be made. For this reason, I think appellants ought not to be aAvarded costs in this court.
The decree beloAV was also appealed from because it aAvarded costs to respondent. But, in that respect,. I think the decree Avas entirely correct. Respondent established an equitable right against defendants, and I can perceive no reason Avhy she should not obtain the costs of the litigation necessary to that end.
I shall vote for modifying the decree in the respects above indicated.
Decree wianimously reversed.