Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Powers

194 A. 86, 122 N.J. Eq. 370

• Court: Supreme Court of New Jersey
• Decided: September 5, 1937
• Status: Published

Opinion

Pee Cubiam.

This is defendant’s appeal, in a foreclosure suit, from a decree in chancery ordering the sale of the mortgaged premises; decreeing that defendant is not entitled to any credits on account of the mortgage indebtedness because of alleged misapplication of rentals collected by mortgagee, or because of reduction of rentals made by the mortgagee or otherwise; and dismissing defendant’s counter-claim.

The issues raised are basically factual. These facts are fully stated in the opinion of the learned vice-chancellor. Our careful study of the proofs satisfies us, save as herein indicated, that they amply support the result reached below.

Eespondents-mortgagees, however, charged the appellant-mortgagor commissions amounting to $3,985.76 for having collected the rents on the property, the lease for which was assigned to it by appellant in one of the several transactions between the parties here involved. We are of the opinion that, under the proofs exhibited, respondents’ legal position with regard to this phase of the case is, in principle, not unlike that of a mortgagee in possession. The latter is not entitled to compensation for services in collecting rents. Shaw v. G. B. Beaumont Co., 88 N. J. Eq. 333, 337. Neither are the respondents here.

The cause will be remanded to the court below where the decree will be modified consistently with this opinion, and as so modified is hereby affirmed.

Since each party is partly successful neither is entitled to costs againts the other. Moore v. Splitdorf Electrical Co., 114 N. J. Eq. 358, 368.

For modification — The Chief-Justice, Trenchasd, Parker, Case, Bodine, Donges, Heher, Perskie, Dear, Wells, WolfsKeil, Rafferty, Cole, JJ. 13.