United Sec. Life Ins. & Trust Co. of Pa. v. Vandegrift's Adm'r

• Citation: 51 N.J.E. 400,26 A. 985
• Parties: UNITED SECURITY LIFE INS. & TRUST CO. OF PENNSYLVANIA v. VANDEGRIFT'S ADM'R et al.
• Decision Date: 05 July 1893
• Court: New Jersey Court of Chancery

26 A. 985

51 N.J.E. 400

UNITED SECURITY LIFE INS. & TRUST CO. OF PENNSYLVANIA

v. VANDEGRIFT'S ADM'R et al.

Court of Chancery of New Jersey.

July 5, 1893.

(Syllabus by the Court.)

Bill by the United Security Life Insurance & Trust Company of Pennsylvania against the administrator of Carrie E. Vandegrift, deceased, and others. Heard on demurrer to the bill. Demurrer overruled.

Lewis Starr, for complainant.

Charles E. Hendrickson. for defendant.

VAN FLEET, V. C. The bill in this case was filed to foreclose by sale the equity of redemption in the land covered by a mortgage made by Carrie E. Vandegrift to the complainant on the 3d day of June, 1890. The mortgagor died intestate on the 7th day of January, 1893. Administration on her estate was granted on the 23d day of the same month, and the bill in this case was filed on the 13th day of February following,— less than a month after the grant of administration. The administrator was made a party defendant to the suit. While he was not a necessary party, still, I think, according to the general current of authority in this state, he is a proper party. In Vreeland v. Loubat, 2 N. J. Eq. 104, and in Chester v. King, Id.405. Governor Pennington held that, while a mortgagor, who had conveyed his equity of redemption in the mortgaged premises, was not a necessary party to a suit to foreclose the mortgage on the land, he was nevertheless a proper party. And in Andrews v. Stelle, 22 N. J. Eq. 478, it was held by the court of errors and appeals, speaking by Mr. Justice Van Syckel, that while a mortgagor, whose equity of redemption had been sold away from him, was not a necessary part to a suit to foreclose the mortgage on the laud, yet, if the complainant made him a party, and he claimed that the mortgage was usurious, to avail himself of that defense he must make it in the foreclosure suit, otherwise he would be concluded by the decree made in that suit, and, if a suit should subsequently be brought on his bond, he would be held to be estopped by the decree in the foreclosure suit from setting up that defense. In Association v. Vendervere, 11 N. J. Eq. 382, 383, Chancellor Williamson intimated quite plainly that he thought to a suit to foreclose a mortgage against the heir of the deceased mortgagor the personal representative of the deceased mortgagor was a necessary party, because he is interested in taking an account of what is due on his intestate's bond; and it is quite apparent that the chancellor would have so declared if the question had been a new one, and not settled, in principle at least, by the decision in Vreeland v. Loubat. But no doubt can be entertained that the interest which such personal representative has in being present when the account is taken of the amount remaining due on his intestate's bond, in order that he may see that all proper credits are given, and the sum remaining due is fairly and correctly ascertained, is quite sufficient to make him a proper party. And there is this advantage to the complainant in making him a party: While no direct or active relief can be awarded against him, he will nevertheless...