Alexander v. Manza.

• Decision Date: 16 February 1944
• Citation: 36 A.2d 142
• Parties: ALEXANDER v. MANZA.
• Court: New Jersey Supreme Court

36 A.2d 142

ALEXANDER

v.MANZA.

Supreme Court of New Jersey.

Feb. 16, 1944.

Action by Elsie Alexander against Aniel A. Manza to recover a deficiency after foreclosure of a mortgage. On plaintiff's motion for a rule to strike out the answer of defendant, and for summary judgment, or in the alternative for a rule consolidating the cause for trial with a pending cause.

Order in accordance with opinion.

See, also, 34 A.2d 11.

Irving I. Jacobs, of Atlantic City, for plaintiff.

Emanuel N. Weitz, of Jersey City, and Vincent S. Haneman, of Atlantic City, for defendant.

BURLING, Circuit Court Judge, and Supreme Court Commissioner.

Motion has been made by the plaintiff for a rule to strike out the answer of the defendant pursuant to R.S. 2:27-124, N.J.S.A., and Supreme Court Rules 40, 80 and 81, N.J.S.A. Tit. 2, and for summary judgment, or in the alternative for a rule to strike out parts of the said answer, or in the alternative for a rule consolidating this cause for trial with the cause now pending in the New Jersey Supreme Court with venue laid in Atlantic County wherein the present plaintiff is the plaintiff therein, and the defendant therein is the defendant in the second count of said cause based upon an independent agreement of assumption of mortgage hereinafter referred to (dated January 20, 1931, Exhibit P-3) and William P. Richards and Alexander A. Lincoln, additional defendants, and against which additional defendants judgment upon the first count of the complaint therein was heretofore entered.

Summons was issued in the first cause on the 7th day of August, 1941, and summons was issued in the present cause of action on the 17th day of July, 1943.

The reasons assigned for this motion are as follows:

1-The allegations and denials in the same are untrue in fact and sham and it is filed only for the purpose of delay, and in support thereof, there was submitted an affidavit and the exhibits mentioned therein;

2-The allegations therein and the statements thereof are frivolous and do not state facts sufficient to constitute a defense in point of law, and it is filed only for the purpose of delay;

3-The matters and things concerned are so factually constituted that they have a common question of law and fact and can be conveniently tried together.

In the present cause of action the following facts are alleged inter alia and supported by affidavit by the plaintiff (uncontradicted by affidavit or other proof by the defendant) pursuant to Supreme Court Rules 80 and 81:

On October 15, A.D. 1925, William P. Richards and Alexander A. Lincoln, being indebted therefor to Madeline Alexander, executed and delivered their bond of that date unto the said Madeline Alexander in the penal sum of $33,000.00 conditioned for the payment of the principal sum of $16,500.00 on November 1, A.D. 1930, with interest thereon at the rate of six per centum per annum, payable semi-annually. (Exhibit P-1)

To secure payment of the said bond, the said William P. Richards and his wife, and the said Alexander A. Lincoln and his wife, executed and delivered a mortgage of even date with said bond unto the said Madeline Alexander of and upon certain lands and premises whereof the said Richards and Lincoln were seized in fee simple, situate in the City of Englewood, in the County of Bergen and State of New Jersey, particularly bounded and described in said mortgage, and known and designated as 39-41 Englewood Avenue, Englewood, New Jersey. The said mortgage being first duly acknowledged and having the certificate of acknowledgment endorsed thereon was duly recorded in the Clerk's Office of Bergen County, New Jersey on November 12, A.D. 1925, in Book 784 of mortgages for said County at page 584, etc. (Exhibit P-2)

By means assignments the said bond and mortgage were duly assigned to plaintiff, and the plaintiff is the owner and holder thereof, to the notice and knowledge of the defendant. (Exhibit P-5)

On or about April 1, A.D. 1926, the said William P. Richards et ux., and the said Alexander A. Lincoln et ux., by deed conveyed the said lands and premises mentioned hereinbefore unto the defendant. Aniel Manza. The said deed being first duly acknowledged and having the certificate of acknowledgement endorsed thereon was duly recorded in the Clerk's Office of Bergen County, New Jersey, on April 6, A.D. 1926, in Book 1397 of Deeds for said County at page 187, etc. By express covenant in said deed contained it was provided as follows:

‘Subject however to a mortgage for $16,500.00, dated October 15, 1925, made by the grantors herein to Madeline Alexander covering said premises, which said mortgage the grantee herein assumes and agrees to pay as a part of the consideration for said premises.’

A certified copy of said deed was presented and marked Exhibit P-6.

Default in the payment of the said mortgage debt, having occurred, the plaintiff as complainant, brought and prosecuted proceedings in the Court of Chancery of New Jersey for the foreclosure of the said mortgage and on November 14, A.D. 1940, a Final Decree for the sale of the said mortgaged lands and premises and the foreclosure of the said mortgage was made by the said Court of Chancery, and in which said proceedings the said Richards, Lincoln, Manza, among others, were defendants, and the said Final Decree adjudged that there was due as of the date thereof to the complainant, the plaintiff, herein, upon said bond and mortgage the sum of $18,404.72 with lawful interest thereon to be computed from November 4, 1940, together with costs of said suit to be taxed and directed that a writ of fieri facias issue to the Sheriff of the County of Bergen for the sale of said mortgaged lands and premises to make the said sum with lawful interest, taxed costs, sheriff's fees, etc.

On December 26, A.D. 1940, pursuant to the said writ the said Sheriff duly sold the said lands and premises according to law at a public sale to the plaintiff, she being the highest bidder, for the sum of $100.00. On July 8, A.D. 1941 by order of the Court of Chancery said sale was confirmed in all respects.

After crediting upon the said Final Decree and writ the amount of the proceeds of said sale, there remained due to the plaintiff upon the same a deficiency in the amount of $18,304.72 together with interest from November 4, A.D. 1940, at the rate of 6 per centum per annum, taxed costs in the Court of Chancery, in the amount of $419.65, Sheriff's fees and disbursements in the amount of $93.34 making the total sum of $18,817.71, no part of which has been paid, except as hereinafter stated.

Thereafter the plaintiff brought suit against the said Richards, Lincoln and this defendant in the New Jersey Supreme Court, on separate causes of action not herein stated, and on April 16, A.D. 1942, recovered judgment against the said Richards and Lincoln in the sum of $20,515.73; subsequent proceedings were had upon said judgment, both in the New Jersey Supreme Court and in the Court of Chancery, and the plaintiff has realized the gross sum of $3500 on account, less subsequent court costs and disbursements.

The said Richards and Lincoln, and the said Aniel A. Manza were party defendants in the proceedings in the Court of Chancery for the foreclosure of said mortgage, and were served with process therein.

Plaintiff contends that the covenant in the deed hereinbefore mentioned and dated April 1, 1926 (Exhibit P-6) was made for the benefit of the said mortgagee and her assigns.

The answer contains a general and perfunctory denial.

The affidavit and exhibits by the plaintiff support the facts aforesaid. Where the denials of the defendant are not supported by any verification and in view of the affidavit of the plaintiff, such denials are sham. Eisele & King v. Raphael, Err. & App. 1917, 90 N.J.L. 219, 101 A. 200; Harley v. Passaic County, Err. & App. 1938, 121 N.J.L. 44, 46, 1 A.2d 454.

The answer further asserts ten separate defenses which I will dispose of in the order in which they are presented:

The first separate defense is as follows:

‘Plaintiff did not file in the office of the Clerk of the County of Bergen, being the county in which the real estate described in the mortgage is situate, a written notice of the proposed action, setting forth the court in which it is proposed to begin the action the names of the parties to the bond and to the action the book and page of the record of the mortgage, together with a description of the real estate described therein, pursuant to the statute in such case made and provided.’

It relates to the provisions of the Revised Statutes relating to mortgages and bonds and foreclosure and actions thereon, known as R.S. 2:65-6, N.J.S.A.

The second separate defense is as follows:

‘Plaintiff's action against the said defendant was not commenced within three months from the date of the confirmation of the sale of the mortgaged premises on July 8, 1941, in accordance with the statute in such case made and provided.’

It relates to the provision of the Revised Statutes relating to mortgages and bonds and foreclosure and actions thereon, known as R.S. 2:65-2, N.J.S.A.

Since the adoption of Chapter 207 of the pamphlet laws of 1898 (R.S. 2:26-3.6, N.J.S.A.) a Court of Law has jurisdiction to entertain a cause of action based upon a deficiency against an assuming grantee. Herbert v. Corby, Sup.1940, 124 N.J.L. 249, 11 A.2d 240, affirmed Err. & App. 1940, 125 N.J.L. 502, 17 A.2d 541, and followed in Woodbridge v. DeAngelis, 125 N.J.L. 579, 17 A.2d 542; Fidelity Union Trust Co. v. Multiple Realty, etc., Co., Ch. 1942, 131 N.J.Eq. 527, 26 A.2d 155. In the last case at page 538 of 131 N.J.Eq., at page 161 of 26 A.2d, it was stated

‘These cases hold that, by virtue of the statute, courts of law have concurrent jurisdiction with that inherent, original jurisdiction which has always been, from time immemorial, the prerogative of the chancellor’.

The statutes above referred to (R.S. 2:65-6 and 2, N.J.S.A.)...