Adams v. Reynolds

55 A. 1003, 65 N.J. Eq. 232, 20 Dickinson 232, 1903 N.J. Ch. LEXIS 61

• Court: New Jersey Court of Chancery
• Decided: September 15, 1903
• Status: Published

Opinion

Grey, Y. C.

The mistake occurred in describing -the third course of the second lot of the mortgaged premises in the bill of complaint, and subsequent proceedings in the foreclosure suit.

The following diagram shows the correct description as set forth in the mortgage, and the erroneous one in the foreclosure proceedings:

The plain lines show the description as given .in the mortgage.

The description in the bill of complaint is the same as to the first and second courses.

The third course in the bill of complaint returns to Pacific -avenu.e by the dotted line. This is the mistake which runs through all the foreclosure proceedings.

It will be noticed that the description in the foreclosure suit is a complete description of a tract of land. It will “close,” as the surveyors phrase it. It includes a part only of the mortgaged second lot, but is complete' as to that part.' This is not a ease which seeks to correct the mistake of an officer executing a writ. The sheriff made no mistake. He advertised and sold the lot which he was ordered to sell.

The judgment in a foreclosure suit is that the defendants stand debarred and foreclosed of their equity of redemption in the said mortgaged premises, “when sold as aforesaid by virtue of this decree

The description of the second lot in the foreclosure proceedings was an efficient description of a part of that lot, and the sale and conveyance of that part has cut off the defendants’ equity of redemption therein; but the proceedings, though correctly carried through to a sheriff’s deed, as to one part of the second lot, omitted to describe or refer to or include the residue of that second lot, and as to this omitted portion, the foreclosure suit has no legal force or effect to cut off the equity of redemption of the defendants. They were not invited to answer as to this part; they permitted no decree to be taken pro confesso against this part; no order for its sale was made, no execution issued directing the sheriff to sell it. He neither advertised nor conveyed it, nor had he any right to do so under the proceedings in the suit. The effect of the foreclosure, as conducted, was, that a part only of the mortgaged premises has been sold, and it raised only a part of the mortgage-money. The equity of redemption of the defendants in the remainder was not affected by those proceedings, and may yet be sold to raise the balance of the mortgage-money.

The petitioner prays a decree amending the description in the bill of complaint to conform to the description in the mortgage, and that the sheriff may be decreed to make and deliver to him a new deed, describing the premises as in the mortgage. Nothing is asked in the way of amendment of the execution or the advertisement of sale. To make an amending decree in this way would, in effect, foreclose the defendants’ equity of redemption in the portion of the mortgaged premises omitted from the proceedings, without notice to them and without advertising that portion for sal&.

The petitioner is not a party to the foreclosure suit, yet he asks that the pleadings and proceedings in it be amended. He is not in the position of a purchaser who prays the aid of the court to enforce its decree for sale, as in cases of applications for writs of assistance. He is applying to have the court alter the proceedings in a matter of substance, in such manner that he may get, by his purchase, more property than the defendants were notified would be sold, more than was advertised to be sold, and more than the purchaser bought.

I cannot see that the petitioner, a stranger to the litigation, has any status to make such a motion. Irrespective of this latter criticism of the petitioner’s position, there is no justice in the proposition on its merits.

The prayer of the petition is refused.