38 A. 297 (N.J.Super.Ch. 1897), Arkenburgh v. The Lakeside Residence Association

Citation:38 A. 297, 56 N.J.Eq. 102
Opinion Judge:PITNEY, V. C.
Party Name:OLIVER M. ARKENBURGH, executor of Robert H. Arkenburgh, v. THE LAKESIDE RESIDENCE ASSOCIATION and ELIZA J. ARKENBURGH
Attorney:Mr. Benjamin A. Vail, for the complainant. Mr. Edward S. Savage, for the defendant association. Mr. Leroy A. Gibby, for Mrs. Arkenburgh.
Case Date:September 09, 1897
Court:Superior Court of New Jersey
 
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Page 297

38 A. 297 (N.J.Super.Ch. 1897)

56 N.J.Eq. 102

OLIVER M. ARKENBURGH, executor of Robert H. Arkenburgh,

v.

THE LAKESIDE RESIDENCE ASSOCIATION and ELIZA J. ARKENBURGH

Court of Chancery of New Jersey

September 9, 1897

Decided October, 1897.

Page 298

On bill to foreclose. Heard on pleadings and proofs.

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 seized, 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 defence 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 25th, 1897.

The mortgage was dated the 16th of July, 1894, to secure the sum of $ 22,500, with interest at five 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 case 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 ninety days before the filing of the bill, and that on the 16th of January, 1897, there became due and payable six months' interest upon said bond and mortgage, and that the same remain in arrear and unpaid for the space of thirty 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...

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