Lincoln Memorial Park v. Lutheran Cemetery

176 A. 564, 117 N.J. Eq. 481, 1935 N.J. LEXIS 673

• Court: Supreme Court of New Jersey
• Decided: January 10, 1935
• Status: Published

Opinion

The opinion of the court was delivered by

Parker, J.

The appeal lacks procedural basis. The suit is to foreclose a mortgage on lands owned by a cemetery company. There are three separate tracts, and the claim was that all of them were devoted to cemetery uses and by the cemetery acts could not be subjected to judicial sale. Conceding for present purposes that lands so circumstanced are exempt from sale even to satisfy a purchase-money mortgage (which is the situation here) the question is not properly before us, for the court ordered a reference to a master to determine the question of fact whether the tracts were, or any of them was, in use for cemetery purposes. The master was attended by counsel on both sides, and reported back that none of the lands covered by the mortgage had been used for cemetery purposes. No exceptions were filed to that report, and it was confirmed in due course, and a temporary order restraining sale pending the inquiry was discharged. From that confirmation and discharge the present appeal is taken.

Such appeal does not lie. As was pointed out in Albert & Kernahan, Inc., v. Franklin Arms, Inc., 104 N. J. Eq. 446, 448, the failure to take exception to the master’s report is by implication a consent to this confirmation and consequently a bar to appeal therefrom. See, also, Polis v. Tice, 28 N. J. Eq. 423, and Merritt v. Jordon, 65 N. J. Eq. 772.

Following the precedent of Albert Kernahan v. Franklin Arms, supra, the appeal will be dismissed.

For dismissal — The Chiee-Justice, Parker, Lloyd, Case, Bodine, Donges, Heher, Perskie, Van Buskirk, Kays, Heteield, Dear, Wells, JJ. 13.