Kessler v. Smith

129 A. 424, 3 N.J. Misc. 32, 1924 N.J. Ch. LEXIS 8

Opinion

Buchanan, Y. C.

Subsequent to the filing of -the conclusions in this cause (2 N. J. Mis. R. 1119), argument has been had as to the requirements that complainants give bond to secure the defendants $5,000 on sale of the interest conveyed by the conveyance under attack, a point that was not argued on the original hearing, and as to which the conclusions followed Horton v. Bamford, 79 N. J. Eq. 356.

Whether or not the course indicated in Horton v. Bamford be proper under certain circumstances, consideration convinces me that there is neither necessity nor propriety in such a requirement in the instant case, and that security should be required from complainants to defendants only as against the expenses of sale.

Complainants are attaching creditors. There is no fi. fa. issued out of the law court. In such case, under the existing practice, an execution may be issued out. of this court. The decree in the present case may so direct, providing for a sale of the equitable and legal interest of Frederick Smith in the lands in question, so1 that the purchaser may stand in the shoes of Frederick Smith and have the same; equitable rights to the new greenhouse, or the increased value by reason thereof, on a, partition or sale in partition, that Frederick Smith would have had prior to the conveyance now set aside in part. The fi. fa. will direct the payment first, out of the proceeds of sale, of $5,000 to the defendants. Charles and Alice Smith, and the balance to be subject, to' the attachment. Charles and Alice Smith can protect themselves by bidding at the sale, as. a, mortgagee or any other security holder would do1 at foreclosure sale.