Halliday v. Johnson

7 N.J. Eq. 22

• Court: New Jersey Court of Chancery
• Decided: December 15, 1847
• Status: Published

Opinion

The Chancellor.

The allegations of the bill from which it was supposed an equity might arise in favor of the complainant to have the sale stayed on his paying what would be due by the terms of the agreement, independent of that part of it which stipulates that on failure to pay any instalment of principal therein mentioned Johnson should be at liberty to proceed on the decree, are, I think, sufficiently denied by the answer.

The other question is, whether, under the circumstances, it was regular to issue an execution without a scire facias. The question is tho same in this case, it strikes me, as if the agreement was between Johnson and Ford alone. Tho decree was obtained in July, 1848. The agreement was made in May, 1844. It provides that a certain portion of the amount due on the decree should be paid on the execution of the agreement; that the interest on tho balance should be paid half yearly: that instalments of f?500 each should be paid on the 1st of April after the date of the agreement, and on the 1st of April in each succeeding year, till April 1,1848, when the whole balance should be paid ; and that on failure in paying any instalment Johnson should bo at liberty to issue execution on his decree. 1 am, of opinion, that under such an agreement for a stay of execution an execution may issue after a year, on a failure to comply with the conditions on which such stay is granted, without a scire facias. The fact that something has been paid on tho decree (several half yearly payments of interest have been made according to the requirement of tho agreement) does not render if necessary to issue a scire facias. Tho case is the same in this respect as if a part of the sum decreed should be paid within the year, and an execution should bo issued within the year without a scire facias. That Johnson did not issue execution on the first default in paying a yearly instalment of principal, but waited till after default in paying the second instalment, did not defeat his right to issue execution after the second default. The injunction will be dissolved, and the complainant in the decree be permitted to proceed on his execution, endorsing thereon the amount remaining due.

Order accordingly.