Am. Net & Twine Co. v. Githens

• Decision Date: 18 October 1898
• Parties: AMERICAN NET & TWINE CO. v. GITHENS et al.
• Court: New Jersey Court of Chancery

41 A. 405

57 N.J.E. 539

AMERICAN NET & TWINE CO.

v. GITHENS et al.

Court of Chancery of New Jersey.

Oct. 18, 1898.

Bill by the American Net & Twine Company against John A. Githens and others to foreclose a mortgage. Heard on bill, separate answers, cross bill, and proofs. Decree for plaintiff.

Leonard J. Tynan and George S. Hilton, for complainant.

James G. Blauvelt, for defendants David M. Demarest and Nicholas H. Jeroleman. Hawkins & Durand, for defendants.

Asbury Park & Ocean Grove Bank and William J. Larabee. J. E. Lanning, for defendants John A. Githens and wife.

REED, V. C. On March 23, 1897, there were six pieces of land owned as follows: Lots 1 and 2, by John A. Githens; lot 3, by Githens and William Larabee; lots 4 and 5, by William Larabee; and lot 6, by Mrs. Larabee, the wife of William Larabee. Upon lot No. 1 there were two mortgages then existing, one for $2,500, made to the Asbury Park & Ocean Grove Bank, and another for $6,500, made to the Mutual Life Insurance Company. On this, March 23d, the owners of these six lots joined in executing three mortgages, each covering all the six lots. One was made to the complainant, the American Net & Twine Company, for $5,219; another to Demarest and Jeroleman for $5,860; and the third to the Asbury Park & Ocean Grove Bank for $5,553. These mortgages were made payable in eight months from their date, and so matured on November 23, 1897. Each mortgage contained a clause that its lien was to be concurrent with the lien of the other two mortgages. Each also contained the following clause: "It is understood and agreed, by and between the parties hereto, that when the pre-existing mortgages upon the tract of land herein described are reduced to the sum of $4,000, the tract of land herein secondly described shall be released from the lien of these mortgages; that is to say, the tract on Mattison avenue." The clause also contained a provision that, upon the payment of a certain sum, lot No. 6 should be released from the lien of the mortgages. The sum named in two of the mortgages, Including complainant's, was $650, and in one of the mortgages $700; so that a release from all three of the mortgages required a payment of $2,000 on account of the three concurrent mortgages. It is in these provisions for the release of lots Nos. 2 and 6 that the questions mooted in this case have their root.

The American Net & Twine Company, the mortgagee in one of the three concurrent mortgages, filed its bill on January 6, 1898, to foreclose its mortgage as a subsisting lien upon all of these lots. The various answers filed set up that the pre-existing mortgages were reduced to $4,000, by which lot No. 2 was discharged from the lien of the three mortgages, one of which mortgages was that of the complainant. The answer of the Larabees set up that the sum of $2,000 was tendered as a payment upon the three mortgages, and so lot No. 6 was discharged. By cross bill the respective defendants ask for the specific performance of the agreement for the release contained in the three mortgages. It was proved on the hearing that before the maturity of the three concurrent mortgages $1,900 had been paid on the pre-existing mortgages on lot No. 1, and that after the maturity of these mortgages, but before the bill in this cause was filed, $1,100 was paid, by which payment the amount of the preexisting mortgages was reduced to $4,000. It is proved that...