Williamson v. Probasco

8 N.J. Eq. 571

• Court: New Jersey Court of Chancery
• Decided: June 15, 1851
• Status: Published

Opinion

The Chancellor.

The bill of Everitt against Hoagland and wife and Williamson states and admits the mortgage to Williamson, and its priority. A decree pro confesso against Williamson on that bill, therefore, did not affect Williamson’s mortgage. The facts stated in the bill, and taken as confessed, showed the priority of Williamson’s mortgage. Williamson, by confessing the bill, simply assented that the complainant might proceed on the basis that Williamson’s mortgage was a lien on the premises prior to the mortgage held by Everitt. And Williamson’s not answering or producing his mortgage before the Master apprized the complainant in that suit that he, Williamson, assented only that the complainant might proceed with his suit against Hoagland and wife on the basis that his, Williamson’s, mortgage was a prior existing lien on the premises. The proceedings subsequent to the decree pro confesso against Williamson were, in reality, only proceedings against Hoagland- and wife; and could not affect Williamson’s interest, any more than if he had not been made a defendant in the bill.

I do not see that even if a stranger, having no knowledge of Williamson’s mortgage, had purchased at the Sheriff’s sale under the decree and execution in this case, Williamson’s rights would have been at all affected. He was in no fault. A mistake, or not well considered form of decree and execution in a suit which ¡admitted his priority, after he had declined putting in his prior mortgage, and assented that the complainant should proceed leaving his mortgage standing as a prior incumbrance, cannot defeat his mortgage.

If a stranger had bought under the decree, and execution in this case, in the form in which they were drawn, supposing he was buying the property free from incumbrance, he would no doubt be relieved from his purchase; but Williamson’s rights could not be affected by any mistaken form of final decree and execution, in a suit in which he declined being a party by declining, as he had a right to do, to proceed on his prior mortgage.

But in this case, Probasco, the purchaser at the Sheriff’s sale, knew of the prior mortgage of Williamson, and-bought subject to it; of this there is no doubt.

Williamson’s bill for the forecloseure of his mortgage alleges, that Probasco knew, at the time of the sale, that the Williamson mortgage was in full force and effect. Probasco denies that he knew it was in full force and effect. This is not a denial of knowledge of the existence of it. He speaks as to his knowledge of the existence of the Williamson mortgage in another part, of his- answer, and his language there is, that he denies that he had any knowledge or belief that Williamson had any mortgage at the time he, the defendant, let Hoagland have the $2000 intended to be secured by the mortgage to him.

The- decree and execution should have been more carefully drawn. But I do not see that. Williamson should be put to the costs and delay of setting aside that decree, or that his rights are-at all affected by.it.

Decree for complainant.