Concklin v. Coddington

12 N.J. Eq. 250

• Court: New Jersey Court of Chancery
• Decided: February 15, 1859
• Status: Published

Opinion

The Chancellor

said, it was well established, as a general rule, that a mortgagee is entitled to his costs, and cited 6 Vin. Ab. 365; Gammon v. Stone, 1 Ves. sen. 339; Detillin v. Gale, 7 Ves. 583; Loftus v. Swift, 2 Sch. & Lef. 642; Witherel v. Collins, 3 Mad. R. 255.

The practice in this court has always been, where a bill Is filed by a second mortgagee making a first mortgagee a party to the suit, to decree the taxed costs of the first mortgagee not only to be paid, but to be first paid out of the money raised by a sale of the mortgaged premises. The second mortgagee, if he wishes to save such costs, must tender the first mortgagee the money due upon his mortgage, as was said in Gammon v. Stone, before referred to. In the case of Shuttleworth v. Lowther, mentioned In 7 Ves. 586, a mortgagee was made to pay costs on the ground of a tender and an appropriation of the money, which was paid into the bank and refused.

It is said the first mortgagee has been guilty of improper conduct. If this is so, the court may not only refuse him costs, but compel him to pay costs. Detillin v. Gale, before referred to.

But no such penalty can attach from the mere fact of Coddington’s setting up his claim under his tax lien. There was nothing improper in his making that purchase, and he was warranted, under the circumstances, in setting it up, although it was disallowed. He was right, holding the first mortgage, not to permit any third party to purchase, and run the risk of his acquiring a prior claim under the law to his mortgage. He did not purchase in bad faith. He bought to protect himself. But this matter was decided against him, and therefore presents the question — whether by extending his claim beyond what he was entitled to will deprive him of costs. I see no reason why it should. In the case of Loftus v. Swift, 2 Sch. & Lef. 657, already referred to, the Lord Chancellor says — “ As to the costs, a mortgagee is always considered as entitled to costs, unless there be something of positive misconduct. Merely extending his elairn beyond what the court finally decides that he is entitled to is no ground for refusing him his costs.” .

I cannot see that Coddington has been guilty of any misconduct. It is true, in taking the accounts before the master, no credits were given for payment of interest on his mortgage. This was not his fault or the fault of his solicitor. The proceedings were irregular on the part of the complainants. Coddington ought to have been summoned before the master. The proceedings were ex parte; and if the accounts were erroneous, the absent party is not to blame. He made no unnecessary delay or difficulty in submitting to have the accounts corrected and made right as soon as the errors were discovered.

Coddington is entitled to have his taxed costs out of the money in court.