Abramowitz v. Wash. Cemetery Ass'n

• Decision Date: 06 February 1947
• Docket Number: 144/150.
• Citation: 51 A.2d 461
• Parties: ABRAMOWITZ et al. v. WASHINGTON CEMETERY ASS'N et al.
• Court: New Jersey Court of Chancery

51 A.2d 461

ABRAMOWITZ et al.

v.WASHINGTON CEMETERY ASS'N et al.

144/150.

Court of Chancery of New Jersey.

Feb. 6, 1947.

Suit by Hyman Abramowitz and another against Washington Cemetery Association and others to foreclose the lien of two mortgages incumbering lands owned by named defendant.

Decree in accordance with opinion.

Syllabus by the Court.

1. The land of a duly organized rural cemetery association which is laid out in lots and improved for, and dedicated to, burial purposes, is not, under our statute, subject to sale under execution to satisfy a mortgage debt, although there have been no interments in parts thereof.

2. The statutory exemption is effective whether the process of execution emanates from a judgment of a court of law or from a money decree of the Court of Chancery.

3. Compound interest is not recoverable unless there has been a settlement between the parties of a conclusive character, or a judgment whereby the aggregate amount of principal and interest is converted into a new principal debt, or where the exaction of compound interest is in some valid form confirmed by special agreement.

Herman H. Anekstein, of New Brunswick, for complainants.

George W. C. McCarter, of Newark, for the Cemetery Association.

Mac C. Berman, pro se.

Mitchell H. Fleischer, pro se.

Samuel L. Rosenberg, for the Congregation Masas Benjamin Anshei Podhajce Sick and Benevolent Society.

JAYNE, Vice Chancellor.

The object of this cause is to foreclose the liens of two mortgages encumbering lands situate in the Township of South Brunswick, Middlesex County, New Jersey. The mortgages in the amounts of $10,000 and $6,000 respectively were executed and delivered by one Minerva Florence Monfred to Mary Nevius on July 1, 1930. On July 8, 1930, the mortgaged premises were acquired by the defendant Washington Cemetery Association, a rural cemetery organization incorporated under our enabling statutes. The mortgages were thereafter by successive assignments transferred to the present complainants.

The delinquencies which warrant the institution of foreclosure proceedings are acknowledged. The complainants pray that a decree be made directing a sale of the mortgaged premises to raise and pay to them the amount determined to be due upon their mortgages, with interest and costs. It is that prayer of the bill that encounters the resistance of the defendant association.

The evidence reveals that upon the acquisition of the land the defendant immediately caused an outline survey of it to be made. The record books requisite for cemetery purposes were forthwith obtained, and maps and blueprints were prepared disclosing the subdivisions of the property into numerically designated sections containing throughout delineations of burial plots and of proposed roadways. A sales campaign was initiated in 1930. During the next succeeding years a chapel was erected; the caretaker's house was improved; water pumping facilities were installed; some sidewalks were laid with curbing at the corners of the blocks; trees were planted along the sides of the roadways, and a chain fence was extended along the boundaries of sections 1 and 2. A considerable number of lots have been sold and to date there have been 337 burials in sections 1 and 2 and 5 and 6 of the cemetery.

It is likewise evident that there are sections of the tract in which as yet no bodies have been interred and which, although kept available, are not at present in actual use for burial purposes.

It is the insistence of the complainants that those portions of the land which have not been and are not now actually used for burial purposes should be sold to satisfy or reduce the mortgage debt. The conclusion expressed in Spear v. Locust Wood Cemetery Co., 72 N.J.Eq. 821, 66 A. 1068, is cited to sustain that contention.

The complainants purchased the mortgages in 1944. Incidentally, they were the owners of lands devoted to cemetery purposes in the immediate neighborhood. They were aware that the mortgages covered cemetery lands. However, the question here projected was definitely determined adversely to the present contention of the complainants by our Court of Errors and Appeals in Gottlieb v. West Ridgelawn Cemetery, 109 N.J.Eq. 585, 158 A. 422. Vide, also, decision of Bigelow, V. C. in Kirby, Receiver, v. Ackerman, ¹ docket 84, page 546 (1933); Fidelity Union Trust Co. v. Union Cemtery Ass'n, 134 N.J.Eq. 254, 256, 35 A.2d 888, affirmed ...