Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

the mortgagee as an indebtedness constituting draft. The evidence does not show how the part of the consideration, and that the re amount for which Longley sold bis interest mainder of the consideration was a debt due to Brock was arrived at, and probably the by one of the mortgagors only. For that rea absence of Brock from the state will render son it was held to be an improper and un the taking of the account very difficult, and lawful attempt to prefer creditors and fraud perbaps the books have not been kept in such ulent and void as to creditors. But as to a manner as to render it possible under any Mrs. Boice it was held good, because her circumstances. mortgage, though subsequent in execution, Be that as it may, unless the parties can was given by the same mortgagors, and she agree upon a partition of the funds upon a had full notice of the prior mortgage, and basis of two-thirds to one-third, or some othwas therefore not a "bona fide purchaser," er basis, an account must be taken. I will but must content herself with taking what settle the decree upon notice. The question ever interest the mortgagors had when they of costs is reserved. executed their mortgage. The notice to Mrs. Boice of the prior mortgage was an actual notice; hence the question still remains

(72 N. J. E. 821) whether the record in this case became, in SPEAR . LOCUST WOOD CEMETERY the absence of any actual notice to Longley,

CO. et al. constructive notice which binds him. The (Court of Chancery of New Jersey. April 22, mortgage to Sperry was properly acknowledg

1907.) ed; the certificate declares that the contents 1. EXEMPTIONS–CEMETEBY LANDS-SALE ON were made known to Brock, etc. In fact the FORECLOSURE.

Act April 8, 1875, § 8 (Revision, p. 102; mortgage was a New Jersey form with a New

Gen. $t. p. 350, $ 8), exempts from sale under Jersey form of certificate. Hence it was en execution the cemetery lands and property of titled to record, and is not within the cat any association formed pursuant to that act or egory of the two assignments of the older otherwise incorporated. Complainant, through

his attorney in fact, sold land to a cemetery mortgage, whose acknowledgments were de

association with full knowledge that it was for fective, and it only remains to inquire wheth use as a cemetery. Held, that he was precluded er, under our statute, it is constructive notice. under the statute from foreclosing the pur I have already cited a part of the twenty

chase-money mortgage on the land.

2. SAME-STATUTES-REPEAL. first section of the act respecting conveyances

Act March 14, 1851, § 10 (P. L. 1851, p. of 1898, which shows that chattel mortgages 257), exempted the lands of cemetery associaare entitled to be recorded. By the fifty tions formed thereunder from sale under executhird section, if properly acknowledged and

tion. Act April 8, 1875 (Revision, p. 1396), re

pealed the act of 1851. Act March 14, 1879 (P. recorded, all such "instruments shall be

L. 1879, p. 318; Gen. St. p. 360, $ 56), amended thereafter notice to all subsequent judgment section 10 of the repealed act of 1851. Held, creditors, purchasers, and mortgagees of the

that the act of 1879 does not repeal the act of

1875. execution of said deed or instrument and of

3. SAME-LAND COVERED BY MORTGAGE. the contents thereof." This statute is per

Act April 8, 1875, § 8 (Revision, p. 102; emptory, and in effect declares that the rec Gen. St. p. 350, $ 8), exempting from sale under ord of the Sperry mortgage was notice to

execution the cemetery lands and property of Longley of the existence of the mortgage and

cemetery associations, applies only to land of

the association actually brought into use as & its contents.

cemetery, though Act May 9, 1889 (P. L. 1889, Counsel for Longley, having his attention p. 418; Gen. St. p. 356, § 40), authorizes the called to this aspect of the case, argues that

holding of 125 acres for cemetery purposes. in the case of Boice v. Conover, supra, Mrs.

4. SEQUESTRATION - ENFOBCING DECREE OP

FORECLOSURE - INCOME Fвом CEMETEBY Boice had actual notice of the former mort

LANDS. gage, and he attempts to distinguish between Act March 21, 1881 (P. L 1881, p. 158; actual notice and the constructive notice re

Gen, St. p. 353, § 18), provides that the rents,

etc., of land held by a cemetery association may sulting from registry. The language of the

be taken and sequestered and applied to the act as to the effect of registry is explicit, payment of judgments against the association, "shall be notice," and I am unable to distin. and the court of chancery may appoint a reguish between actual notice and constructive

ceiver to take and apply the rents, etc., for

that purpose. Held that, where the lands of notice due to the statute. No authority was

a cemetery association not used as a cemetery produced by counsel to sustain his argument are sold to satisfy a mortgage on the entire in that respect, and in my judgment to sus

tract owned by the association, and the pro

ceeds are insufficient to satisfy the amount due, tain the distinction as claimed would have

a receiver may be appointed to take possession the effect of destroying the whole of the reg. of the cemetery tract reserved from sale, and istry act in the matter of notice.

sequester the income for application to the The result, then, to which I have come is

amount remaining due under the decree of fore

closure. this: That Longley's mortgage is the first lien on the two-thirds interest in the chat Suit by Charles O. Spear against the La tels, and also that Longley has a partner's cust Wood Cemetery Company and others to lien on the other one-third for any amount foreclose a purchase-money mortgage. De which, upon taking the account, it may be cree rendered. found that Brock has reduced his propor The bill seeks to foreclose a purchase-mon"lonate share in the property, if any, by over ey mortgage made November 17, 1902, by the

No

Locust Wood Cemetery Company to complain eral months prior to the sale, and that comant. The defense is made by the provisions pany was permitted by complainant's attorof section 8 of the cemetery act of 1875 (Revi ney in fact (who afterwards conveyed the sion, p. 102; Gen. St. p. 350, § 8) that the land for complainant) to take possession and cemetery lands covered by the mortgage can lay out a portion of the land into cemetery not be sold to satisfy the mortgage debt. lots as early as August, 1902, and during French & Richards, for complainant. John

that time the attorney in fact referred to F. Harned, for defendants.

was a member of the cemetery company. It

is entirely clear that tbe sale of the land LEAMING, V. C. Defendant Locust Wood

was made by complainant, through the attorCemetery Company was incorporated April 29,

ney in fact, to the cemetery company, with 1902, under the general corporation act. The

full knowledge that it was for use as a cemeobject for which the corporation was formed is

tery, and the mortgage must be regarded as defined in its certificate of incorporation as

having been accepted by complainant with a "to maintain cemetery or cemeteries.”

full knowledge of and acquiescence in the vember 17, 1902, complainant conveyed to

proposed use of the land. Under these cirdefendant Locust Wood Cemetery Company

cumstances the rights of the mortgagee canthe tract of land now in question, and at the

not properly be considered as free from the same time that company executed to com

burden imposed by the statute. plainant a purchase-money mortgage on the

The contention is also made that the proland conveyed to secure the payment of a

visions of section 8, above referred to, are bond given by the company for a part of the

superseded by an act of March 14, 1879 (P. L. purchase price. Defendant Locust Wood

1879, p. 318; Gen. St. p. 360, § 56). The act Cemetery Company brought into use as a

of 1879 is a supplement to the act of 1851, cemetery a portion of the mortgaged premises

above referred to, and amends section 10 of and operated as a cemetery company until

that act. The act of 1851 was repealed in November 17, 1904, when 125 acres of the

1875. The curious legislation thus presented mortgaged premises, including the part in

is an amendment of a repealed statute. In

the consideration of this statute in Newark v. use as a cemetery, was conveyed by it to de fendant Locust Wood Cemetery Association,

Mount Pleasant Cemetery Company, 58 N. J. the latter corporation having been formed

Law, 168, 173, 33 Atl. 396, the Court of Apunder the cemetery act of 1875 (Revision, p.

peals finds no legislative intent to apply its 100; Gen. St. p. 349) for the purpose of taking

provisions to cemetery corporations other over that portion of the land. The present

than those incorporated under the act of

1851. foreclosure of the mortgage is resisted as to the 125 acres conveyed to the latter company

Having reached the conclusion that section under the claim that the statute exempts the

8 of the act of 1875 operates to exempt "the land from sale.

cemetery lands and property" of defendants Section 8 of the act of April 8, 1875 (Re from sale under a decree of foreclosure of vision, p. 102; Gen. St. p. 350, $ 8), exempts

the mortgage held by complainant, it becomes from sale under execution "the cemetery

necessary to determine whether all the land lands and property" of any association form

covered by the mortgage is so exempt, and, ed pursuant to that act, “or otherwise incor

if , porated." This section is substantially the same as section 10 of the act of March 14,

tion of the land covered by the mortgage has 1851 (P. L. 1851, p. 257). As is suggested in

been brought into use as a cemetery. About Rosedale Cemetery Association V. Linden

100 burial lots have been sold, and about 30 Township (N. J. Sup.) 63 Atl. 904, the pur

interments have been made. The contention pose of this legislation is the protection and

is made that as the act of May 9, 1889 (P. preservation of the places where the dead

L. 1889, p. 418; Gen. St. p. 356, $ 40), auare buried.

thorizes 125 acres to be held for cemetery The contention is made on behalf of com

purposes, and, as that exact acreage was acplainant that the present mortgage, as a pur

cordingly conveyed to the Locust Wood Cemchase-money mortgage, will be protected from etery Association, the entire 125 acres will be the operation of the section. This contention exempted from sale. This contention cannot cannot prevail. If complainant could be said

be maintained. The exempting section (secto occupy the position of one who had taken tion 8) defines as exempt from taxation and a mortgage on lands not devoted to use as also from sale under execution “the cemetery a cemetery, I entertain no doubt that the sub lands and property" of the association. I sequent dedication of the land to cemetery think that the only reasonable construction purposes, without the consent of the mortga of the language used is that the land ingee, could not, under our Constitution, operate tended by the Legislature to be exempted to impair the mortgage security. But it is im from taxation and from sale under execution possible to give to complainant the benefit of is the land actually brought into use for cemthat status. The evidence disclosed that the etery purposes. With no limitation at that cemetery company tentatively arranged with time existing upon the quantity of land which complainant's attorney in fact for the pur a cemetery company could own, the legisla. chase of this land for use as a cemetery seve tive intent to exempt from taxation and

181

" The evidence discloses that but a small por

a Cemetery Comparsenal puting

A the cemetery act of heri ner in fact (or afterwany 19

sered by the merase can lay out a portion of the land mat if"1111!!

bed by an act of March 14, 1870 (P. In

[ocr errors]

er basis, an acco
ta' refect or owners should order the same,
ts, stating, when possible, the price to

And thereto. At the trial the court directed
verdict for the extras, if the evidence showed

architect's order in writing for the extra w without a resolution of the city being

as passed authorizing the same.

the mortgagee as an indebtedness constituting draft. The evidence does not show
part of the consideration, and that the re amount for which Longley sold
mainder of the consideration was a debt due to Brock was arrived at, and
by one of the mortgagors only. For that rea absence of Brock from the ste
son it was held to be an improper and un the taking of the account vo
lawful attempt to prefer creditors and fraud perhaps the books have not:
ulent and void as to creditors. But as to a manner as to render it
Mrs. Boice it was held good, because her circumstances.
mortgage, though subsequent in execution, Be that as it may,
was given by the same mortgagors, and she agree upon a partit
had full notice of the prior mortgage, and basis of two-thirds
was therefore not a "bona fide purchaser,"
but must content herself with taking what settle the decrer
ever interest the mortgagors had when they of costs is res
executed their mortgage. The notice to Mrs.
Boice of the prior mortgage was an actual
notice; hence the question still remains
whether the recor in this case became, in SPEAR
the absence of any actual notice to Longley,
constructive notice which binds him. The (Court
mortgage to Sperry was properly acknowledg.
ed; the certificate declares that the contents 1.
were made known to Brock, etc. In fact the
mortgage was a New Jersey form with a New
Jersey form of certificate. Hence it was en-
titled to record, and is not within the cat..
egory of the two assignments of the olde
mortgage, whose acknowledgments were
fective, and it only remains to inquire wb
er, under our statute, it is constructive p
I have already cited a part of the t
first section of the act respecting cony
of 1898, which shows that chattel /
are entitled to be recorded. By
third section, if properly acknov.
recorded, all such "instrumer
thereafter notice to all subseq
creditors, purchasers, and mo
execution of said deed or ir

clause in the contents thereof." T

ug “Subcontractemptory, and in effect de

us as follows: “Should ord of the Sperry mor

time desire any variation Longley of the existeno

..urk as planned and specified, or its contents.

uid the owners desire any additional work Counsel for Long

executed, the same shall be proceeded with, called to this aspe

tges after the architect or owners shall order it in the case of Bo

cations. wisted on the

in writing, and stating when possible the Boice had actus

vred as required price to be paid thereto." gage, and he s

act. There was a The case shows, and it is admitted, that actual notice

which prohibited any the extra work was not authorized by a

without a resolution of sulting fror ad an express agreement in

resolution of the mayor and council of the act as to

che parties as to the cost to city, but that it was ordered by the architect "shall be de contract price for the same. in writing. When the learned trial judge guish b

covision in the instrument under
"Subcontractor Notice" was that,

came to deal with the case in his charge, he
notice
De owner at any time desire any varia-

instructed the jury that, as to the legal quesprod the work or any additional work exe tion raised whether any recovery can be had he same might be proceeded with after

without such a resolution or whether under
a later clause in the contract the plaintiff is
entitled to rely upon the mere writing of the
architect, he had resolved that question for the

present in favor of the plaintiff, and directed
Held, on re-

the jury that, if they found the orders were Now, that the latter proviso applied to subcon given by the architect in writing and that tractors only, and that the proviso first named the work was done properly and the charges was binding upon the contracting parties here, and that unless plaintiff would remit from the

for those items were either fixed by the writverdict the amount of the extras it must be ing or were reasonable charges, they should net aside and a new trial granted.

find those amounts in favor of the plaintiff in (Syllabus by the Court.)

addition to the balance of the contract price.

- for complainant. John the mortgage dest.

many cumstances the rights of the mortgagee enn ed to proposed use of the land. Under thene cir.

Na full knowledge of and acquiescence in the
station as baring been accepted by complainant with a

s formed is tery, and the mortgage must be regarded as
gion act. The full knowledge that it was for use in nome
grated April 29, nes in fact, to the cemetery company, with
dant Locust Wood was made by complainant, through the altar

is entirely clear that the sale of the land
was a member of the cemetery company. I
that time the attorney in fact miernou link

se 30, 15 t. the land for complainant) to take pasapori!!!

Riots of section & above referred to, are

The contention is also made that the pro

burden imposed by the statute.
the not properly be considered as free from the

lots as early as August, 1:41and all "

legislation thus presented
The Best of 1972 es repeated in
ered to, and amends section 10 of

supplement to the act of 1831,
0.226 Gen. SL n. 360, $ 56). The art

[graphic]
[ocr errors]

bod Cemetery Companr to complaini eral months prior to the sale, and that *****

on.

lainant. John
mortgage Jebt.
bir the murtune can.
St. p. 33), $ 8) that the
he cemetery act of 1873 (Revi.

SPEJR v. LEXUST WOOD CEMETERY (0)

[ocr errors]

detoul an free for the

tents of the morta'ns**** can
louden of an Arqulou role in the

of the Innd. Inder then rir.
a braill noreplou by compiminant with a
ry, and the moriense met be trued as
full knowledge that it was for time in a come
ney in fact, to the cometery company, will
was made by complainant, through the attur
18 entirely clear that the unlos of the land
was a member of the cemetery company. It
that time the attorney in fact roterrout to

lots as early as August, 1902, amit during
fense is made by the provisions pany was permitted by complainant's attur

lay out a portion of the land into cometery
land for complainant) to take pornoulun and
per in fact (who afterwariin tunteet the

[ocr errors]

there was error in this construction GARRISON, V. C. It is not necessary to tract in question. Our view is that advert to the issues raised and decided in on first named applied to this con this suit. The only question to be determin'hat the other provisions apply ed is one of costs. The suit is one to foreors only, declaring their obliga close a mortgage held by the complainant, actor and to the owner. And and the solicitor of the complainant causint we think the phrase in ed, not only the customary searches to be notice, "should the owners made from the date of the mortgage, but al work executed," im also searched the title anterior to the date

of the owners in this of the mortgage for the purpose of disclosing ?d by a resolution of any defects in or liens or incumbrances there he main portion of His purpose in doing this was so that

he could insert in the notice of sale and in is also that the the conditions thereof a reasonable descrip1 the ground of tion of the defects in the title and the liens ce shows that or incumbrances thereon, so that the pur'll of the ar chaser at the sale could not be relieved of his ission, the bid on account of the existence of such de? item of fects, liens, or incumbrances. The insertion I of the in the notice of sale, and in the conditions

from thereof, of the existence of the defects in the Vith title and of the liens and incumbrances thererits on has the effect of preventing the purchaser is from obtaining relief from his bid by force

of the statute (P. L. 1906, p. 269).

The solicitor of the complainant requested me to certify, in pursuance of rule 113a, that i my opinion the certificates of search pre ted by him were necessary for the proper "losure of his mortgage, upon which cera he could obtain the taxation of the

n his costs. I will certify that the pense incurred in procuring searches show

ing the state of the title since the date of the the mortgage were necessary for the proper wie

foreclosure thereof, and, therefore, under rule 113a and the statute (P. L. 1902, p. 540) are properly taxable in favor of the complainant.

I cannot certify that the expenses incurred u V. FISHER et al.

for searching the title anterior to the date ucery of New Jersey. May 25,

of the mortgage are taxable. 1907.)

contends The complainant

that these UAGES FORECLOSURE-COSTS-SEARCHING TITLE.

search fees should be included, because they Under P. L. 1906, p. 269, providing that were rendered necessary by the statute above à purchaser of real estate at foreclosure sale, referred to (P. L. 1906, p. 269). I do not etc., shall be relieved from his bid if before de livery of the deed he satisfy the court of the

concur in this view. In my view, that statute existence of any substantial defect in or cloud does not cast any duty upon the complainon the title which would render the title un ant, or upon any of the parties in the suit, marketable, or of the existence of any lien or

but does extend to each of them a privilege. incumbrance thereon, unless a reasonable de scription of the estate or interest to be sold and

Before the enactment of this suit a purchaser of the defects in the title and liens or incum at a judicial sale in New Jersey took such brances thereon, with the approximate amount title as the proceedings showed, and could thereof, be inserted in the notices and advertise

not claim to be relieved because of the existments of sale and in the conditions of sale, expenses incurred in procuring searches show

ence of prior incumbrances or of defects in ing the state of a title since the date of a the title. The effect of this statute is to mortgage were necessary for the proper foreclo

prevent the bidder or purchaser from being sure thereof, and taxable under rule 113a in favor of the party foreclosing the mortgage,

relieved, if the defects in the title and the though expenses incurred in searching the title liens and incumbrances thereon are brought anterior to the date of the mortgage were not to his notice before the sale. taxable,

In my view, therefore, any one who desires (Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, $ 1662.)

to bring these things to the notice of the in

tending purchasers may do so, but it is not Bill by Roland D. Armstrong against Agnes

the duty of any one to do so. A mortgage Fisher and others. Heard on bill, answer,

may be foreclosed, and the equity of redempreplication, and proofs. Decree for defend

tion disposed of, and the title which a sale ants in part.

under the mortgage is capable of conveying Condict, Condict & Boardman, for com be conveyed, without necessarily searching plainant. Tennant & Haight, for defendant back of the date of the mortgage. If it be to

[ocr errors]
[ocr errors][ocr errors]

from sale all lands which cemetery companies Action by John T. McLaughlin against the
might acquire cannot be reasonably assumed mayor and council of the city of Bayonne.
from the language used. The natural signif Verdict for plaintiff. Rule to show cause
icance of the words "cemetery lands,” as well made absolute on conditions.
as the manifest purpose of the legislation, Argued February term, 1907, before FORT,
indicates an intention to extend the exemp PITNEY, and HENDRICKSON, JJ.
tions only to lands actually used for cemetery
purposes.
This view of the legislative pur-

Elmer W. Demarest, for the rule. William

D. Edwards, opposed. pose led the Supreme Court, in Rosedale Cemetery Association v. Linden Township, supra, to construe the word "property," as used in HENDRICKSON, J. The plaintiff obtainthis section, as inapplicable to personal prop ed a verdict in the above cause at the Hudson erty.

circuit for $1,713.39. Of this amount $1,405.The view here taken renders necessary 59 was admitted to be due the plaintiff for the ascertainment by exact boundaries of the balance due him, with interest, under a the lands which shall not be subject to the

contract with the city for plumbing, gas fitdecree of sale. For that purpose a master ting, and heating in the police station house will be appointed whose duty it will be as lately erected in said city. The balance of certain and report the boundaries of the land the verdict ($307.80) represents a charge for which is in use for burial purposes. Upon certain extras incurred by variations and adthe confirmation of that report a decree will ditions to the work provided by the specificabe made for the sale of the remainder of the tions; the payment of which is resisted by land in satisfaction of the amount due on the city on the ground that no legal liability the mortgage held by complainant. If the for such payment exists, and that none was proceeds of sale are not sufficient to satisfy shown at the trial. The plaintiff claims that the amount due, a receiver may be appointed

the items for extra work were incurred in pursuant to the act of March 21, 1881 (P. L. accordance with the provisions of the con1881, p. 158; Gen. St. p. 353, § 18), to take tract. It is therein provided that such alpossession of the cemetery tract reserved terations or additions may be made, should from sale, and sequester the income for appli the city through its committee during the cation to the amount remaining due under progress of the work so desire; the contract the decree of foreclosure.

price to be added to or subtracted from ac-
cording to changes made with the proviso
added “that no extra work shall be bad or

done without a resolution of said city and (75 N. J. L. 106)

an express agreement in writing between the MCLAUGHLIN V. MAYOR AND COUNCIL

parties hereto as to the cost to be added to OF CITY OF BAYONNE,

the price of this contract because of such ex(Supreme Court of New Jersey. June 10, tra work." There was a further clause in 1907.)

the contract under the heading "SubcontractMUNICIPAL CORPORATIONS-BUILDING CON. or Notice," which reads as follows: “Should TRACTS-CONSTRUCTION-LIABILITY FOR Ex

the owner at any time desire any variation TRAS.

of the work as planned and specified, or The plaintiff brought suit to recover of a city municipality the balance due on a contract

should the owners desire any additional work for plumbing, gas fitting, etc., in a new police executed, the same shall be proceeded with, station house, and also for a bill of charges after the architect or owners shall order it for extra work outside of the specifications. The payment of the extras was resisted on the

in writing, and stating when possible the ground that they were not ordered as required price to be paid thereto.” by the provisions of the contract. There was a The case shows, and it is admitted, that clause in that writing which prohibited any the extra work was not autborized by a extra work being done without a resolution of the city council, and an express agreement in

resolution of the mayor and council of the writing between the parties as to the cost to city, but that it was ordered by the architect be added to the contract price for the same. in writing. When the learned trial judge A further provision in the instrument under

came to deal with the case in his charge, he the heading of "Subcontractor Notice” was that, should the owner at any time desire any varia

instructed the jury that, as to the legal question of the work or any additional work exe tion raised whether any recovery can be had cuted, the same might be proceeded with after

without such a resolution or whether under the architect or owners should order the same, in writing, stating, when possible, the price to

a later clause in the contract the plaintiff is be paid thereto. At the trial the court directed entitled to rely upon the mere writing of the a verdict for the extras, if the evidence showed architect, he had resolved that question for the the architect's order in writing for the extra work without a resolution of the city being present in favor of the plaintiff, and directed first passed authorizing the same. II eld, on re

the jury that, if they found the orders were view, that the latter proviso applied to subcon- given by the architect in writing and that tractors only, and that the proviso first named the work was done properly and the charges was binding upon the contracting parties here, and that unless plaintiff would remit from the

for those items were either fixed by the writVerdict the amount of the extras it must be ing or were reasonable charges, they should set aside and a new trial granted.

find those amounts in favor of the plaintiff in (Syllabus by the Court.)

addition to the balance of the contract price.

« ΠροηγούμενηΣυνέχεια »