Baltimore v. Clark

Supreme Court of New Jersey

Baltimore v. Clark

28 A.2d 169, 132 N.J. Eq. 374, 1942 N.J. LEXIS 505

CourtSupreme Court of New Jersey

DecidedSeptember 18, 1942

StatusPublished

Cited by6 cases

This text of 28 A.2d 169 (Baltimore v. Clark) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baltimore v. Clark, 28 A.2d 169, 132 N.J. Eq. 374, 1942 N.J. LEXIS 505 (N.J. 1942).

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Opinion

*375 The opinion of the court was delivered by

Heher, J.

The primary question at issue is the validity of a sale of chattels in foreclosure of a mortgage. The debt thereby secured was payable in monthly installments of $50, with interest. Only the first installment was in default when the bailiff posted the notices of sale, but the next two succeeding installments became in arrears before the sale was held. The contention is that “the sale was made for the entire principal sum,” and was therefore “premature and illegal,” since the mortgage did not contain an acceleration clause. Respondent reads the condition of the mortgage differently, and maintains that default in the payment of a stipulated installment matured the whole principal. But, for a reason to be presently stated, there is no occasion to consider the point.

The sale of the goods yielded but $50, a sum not sufficient, after the payment of the expenses of sale, to satisfy the installment concededly in default when the foreclosure proceeding was instituted, and there is therefore no ground for equitable interposition. The right to foreclose the mortgage for the recovery of the amount in default is indisputable. The Pennsylvania Company for Insurance on Lives and Granting Annuities v. Broadway-Stevens Co., 105 N. J. Eq. 494; McFadden v. Mays Landing and Egg Harbor City Railroad Co., 49 N. J. Eq. 176; Van Doren v. Dickerson, 33 N. J. Eq. 388; Bird v. Davis, 14 N. J. Eq. 467. And in view of the sum realized from the sale, it cannot be said that it was practicable to satisfy the debt due by a sale of a portion of the mortgaged chattels.

We concur in the conclusions of the learned Vice-Chancellor on the remaining questions argued.

Decree affirmed.

For affirmance — The Chiee-Justioe, Parker, Case, Bodihe, Donees, Heher, Perskie, Porter, Colie, Dear, Wells, Raeeerty, Hague, JJ. 13.

For reversal — None.

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*375 The opinion of the court was delivered by

Heher, J.

The primary question at issue is the validity of a sale of chattels in foreclosure of a mortgage. The debt thereby secured was payable in monthly installments of $50, with interest. Only the first installment was in default when the bailiff posted the notices of sale, but the next two succeeding installments became in arrears before the sale was held. The contention is that “the sale was made for the entire principal sum,” and was therefore “premature and illegal,” since the mortgage did not contain an acceleration clause. Respondent reads the condition of the mortgage differently, and maintains that default in the payment of a stipulated installment matured the whole principal. But, for a reason to be presently stated, there is no occasion to consider the point.

The sale of the goods yielded but $50, a sum not sufficient, after the payment of the expenses of sale, to satisfy the installment concededly in default when the foreclosure proceeding was instituted, and there is therefore no ground for equitable interposition. The right to foreclose the mortgage for the recovery of the amount in default is indisputable. The Pennsylvania Company for Insurance on Lives and Granting Annuities v. Broadway-Stevens Co., 105 N. J. Eq. 494; McFadden v. Mays Landing and Egg Harbor City Railroad Co., 49 N. J. Eq. 176; Van Doren v. Dickerson, 33 N. J. Eq. 388; Bird v. Davis, 14 N. J. Eq. 467. And in view of the sum realized from the sale, it cannot be said that it was practicable to satisfy the debt due by a sale of a portion of the mortgaged chattels.

We concur in the conclusions of the learned Vice-Chancellor on the remaining questions argued.

Decree affirmed.

For affirmance — The Chiee-Justioe, Parker, Case, Bodihe, Donees, Heher, Perskie, Porter, Colie, Dear, Wells, Raeeerty, Hague, JJ. 13.

For reversal — None.

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28 A.2d 169, 132 N.J. Eq. 374, 1942 N.J. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baltimore-v-clark-nj-1942.

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