Arkenburgh v. Lakeside Residence Ass'n
| Decision Date | 09 September 1897 |
| Parties | ARKENBURGH v. LAKESIDE RESIDENCE ASS'N et al. |
| Court | New Jersey Court of Chancery |
Bill by Oliver M. Arkenburgh, executor of the will of Robert H. Arkenburgh, deceased, against the Lakeside Residence Association and Eliza J. Arkenburgh, to foreclose a mortgage. Heard on pleadings and proof. Decree for complainant.
The bill is in the ordinary form to foreclose a mortgage made by one Dunn to the complainant, Oliver M. Arkenburgh, and the defendant Eliza J. Arkenburgh, as executor and executrix of the last will of Robert H. Arkenburgh, deceased. The mortgage, with the accompanying bond, was given to secure part of the consideration money of a conveyance by the executor and executrix to Dunn, the mortgagor, of land of which the testator died seised; the conveyance being made by virtue of power for that purpose found in his will. The allegation and proof are that the defendant Eliza J. Arkenburgh refused to join with the complainant in the suit for foreclosure. Besides the ordinary prayer to foreclose, there-is a prayer to reform the mortgage, which was drawn by a New York conveyancer, and was made to the two executors and "their successors and assigns." The prayer for reformation is that it may be declared to be payable to their heirs and assigns. The proof is clear on this subject, and no question is made but that it should be so reformed. The defense to the action is that the amount secured by the mortgage was not, by its terms, due when the bill was filed, to wit, February 26, 1897. The mortgage was dated the 16th of July, 1894, to secure the sum of $22,500, with Interest at 5 per cent., payable semiannually, on the 16th day of January and July in each year, with installments on account of the principal as follows: $2,500 in one year, $2,500 in two years, $2,500 in three years, $2,500 in four years, and $12,500 in five years, from the date of the bond. The mortgage contains a clause to the effect that "should any default be made in the payment of the said interest or said principal sum, or of any part thereof, on any day whereon the same is made payable as> above expressed, or should any tax, assessment, water rent, or other municipal or governmental rate, charge, imposition, or lien be hereafter imposed or acquired upon the premises described in this mortgage, and become due and payable, and should the said interest or said principal sum, or any part thereof, remain unpaid and in arrear for the space of thirty days, or said tax, assessment, water rent, or other municipal or governmental rate, charge, imposition, or lien, or any or either of them, remain unpaid and in arrear for the space of ninety days, then and from thenceforth (that is to say, after the lapse or expiration of the said periods, as the ease may be) the aforesaid principal sum of $22,500 shall become due." The allegation of the bill is that on the 15th of October, 1896, the taxes assessed against said property by the mayor and common council of the city of Rahway, where the same is situate, for the year 1896, became a lien thereon, and have remained unpaid and in arrear for the space of 90 days before the filing of the bill, and that on the 16th of January, 1897, there became due and payable 6 months' interest upon said bond and mortgage, and that the same remained in arrear and unpaid for the space of 30 days. It is proper to say that this clause in the mortgage was intended to be, but appears not to have been, set out in the bill. No point was made about that omission, either in the answer or at the hearing, and the cause was tried precisely as if that clause bad been inserted in the bill, which has since been amended accordingly. The property was conveyed by Dunn, the mortgagor, immediately after the giving of the mortgage, to the defendant the Lakeside Residence Association. In fact, Dunn was a mere figurehead for the corporation defendant.
The corporation and Mrs. Arkenburgh have separately answered, and by different solicitors, but the solicitor of Mrs. Arkenburgh is a mere clerk in the office of the solicitor of the corporation. The defense manifested by the answer of the corporation is that all the payments of interest were duly made; that the installment of interest due on the 16th of January, 1897, was paid before it was due to the defendant Eliza J. Arkenburgh, by a check drawn to the order of both executors,—Eliza and the complainant. The precise allegation of the answer in that respect is that the mortgage had previously been in the hands of the complainant, as the acting executor, and that, payments of interest having been theretofore made to the complainant, the defendant Eliza before the 16th of January, 1897, notified the corporation, in writing, not to pay any more interest to the complainant; that the defendant corporation made an offer to the complainant to pay him and his co-executor, Eliza, jointly, which the complainant refused to accept, whereupon the defendant corporation paid the installment of interest to Eliza, and took a receipt from her for the amount. The further allegation is that there is no tax due or unpaid upon the premises, and that all taxes have been paid, and that no covenant or condition of the said mortgage which the defendant corporation is obligated to keep or perform has been broken or unfulfilled. The answer further sets up that the co-mortgagee, Eliza, does not wish the mortgage to be declared to be due and payable, and that she is willing and ready to accept and receipt for the installments of interest and principal as they severally fall due. In effect, it is a statement that she waives the breach, if any, of the conditions. The answer of Eliza denies that the complainant has been the managing executor of the estate, or that he has any special right or authority to hold the possession of the bond and mortgage, but that such bond and mortgage, together with the other assets of the estate, are, and of right should be, held jointly by the defendant and the complainant. It further sets up that all the installments of interest have been duly paid, and that Oliver was, by order of a court of competent jurisdiction, ordered to pay over and deposit in the trust company designated in the order the interest and installments of principal so received by him, and that he has failed and...
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