Rogers v. Lippincott

Backes, V. C.

The argument in support of the motion is that the complainant cannot defeat the power of sale by electing to take the land unless all of the beneficiaries join in the election. Condict v. Condict, 73 N. J. Eq. 301. The principle that land equitably converted into personal property cannot be reconverted into realty by the owners of the fee entitled to the personalty unless by unanimous consent, is of no assistance to the defendant because the interests of the beneficiaries under the will in question, except that of the complainant, and their estate in the land, as heirs of the testator, have been extinguished by the foreclosure suit under a superior title arising out of the mortgage made by the testator, and as to them the power of sale has been exhausted. The only person now interested in the exercise of the power of sale is the complainant, and, as his interest in the proceeds of sale is identical with his estate in the land, he has the right to defeat the power by electing to take the land. Doyle v. Blake, 77 N. J. Eq. 142. Thus, as a tenant in common with the defendant Mary Rogers Lippincott, he may maintain the bill to partition the premises.

Moreover, it appears by the allegations of the bill that the defendants executed mortgages upon their several interests in the land. This was an election on their part to reconvert the personalty into real estate. Gest v. Flock, 2 N. J. Eq. 108; Maddock v. Progressive Investment Co., 84 Atl. Rep. 575.

The motion is denied, with costs.