Garfinkel v. Hickey

2 N.J. Misc. 548, 1924 N.J. Ch. LEXIS 163

• Court: New Jersey Court of Chancery
• Decided: June 18, 1924
• Status: Published

Opinion

.IXgeksoll, Y. C.

This is on bill to foreclose. Complainant alleges that the eniire principal sum is due by reason of a default, for more than thirty days, in the- payment of a semi-annual installment of interest, which became due on December 1st, 1923.

The defendant purchased this property on or about the 20th clay of August, 1923, subject to the operation of the murtgage now being foreclosed.

This mortgage was executed on June 11th, 1923, by John E. "Fiable to the Atlantic City Realty Company, to secure the payment of the sum of $7,500 at any time within three years from the date thereof, and contained the usual “default clause,” in the event of the non-payment of interest.

On December 1st, 1923, this mortgage was assigned to tiro complainant by deed of assignment, bearing date on said day, and recorded on the 31st day of December, 1923.

At the time of the delivery of the deed to Hickey, and the settlement for the consideration thereof, Hickey was not present, but was represented by a real estate agent. An adjustment of the interest then due on this mortgage was made. Hickey testified that, although he knew the property was. subject to a mortgage of $7,500, he never knew the date upon which interest became due, and that lie never received notice thereof.

Xo action was taken by the complainant until after the expiration of the thirty days, when a letter was written by the solicitor to Hickey of the contemplated foreclosure, which resulted in a call by Hickey upon the solicitor, who, on January 3d, 1924, agreed to take no steps toward foreclosing the mortgage until after January 21st, 1924. Xo settlement having been made at that time, the bill to foreclose was filed on February 8th, 1924.

At no time prior to- the expiration of the thirty days did Hickey take any steps to pay this interest to anyone.

Following the reasoning of Vice-Chancellor Church in Scharff v. Annaltee Realty Co., 2 N. J. Adv. R. 1091, decided on May 23d, 1924, I will advise a decree in accordance with the prayer of the bill.