Camden Safe Deposit & Trust Co. v. Dialogue

• Decision Date: 22 March 1909
• Citation: 72 A. 358,75 N.J.E. 600
• Parties: CAMDEN SAFE DEPOSIT & TRUST CO. v. DIALOGUE.
• Court: New Jersey Supreme Court

72 A. 358

75 N.J.E. 600

CAMDEN SAFE DEPOSIT & TRUST CO.

v. DIALOGUE.

Court of Errors and Appeals of New Jersey.

March 22, 1909.

Appeal from Court of Chancery.

Bill by the Camden Safe Deposit & Trust Company, trustee, against John H. Dialogue. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

French & Richards, for appellant. George J. Bergen, for respondent.

PER CURIAM. The bill in this case was filed to foreclose a mortgage given by John H. Dialogue to the Camden Safe Deposit & Trust Company, as trustee, to secure the payment of 188 bonds of $500 each. The complainant has made the holders of about 40 per cent. of these bonds parties to the litigation, and alleges in its bill that the holders of the balance of said bonds are unknown to it, and cannot be ascertained by it, and that it is highly inconvenient or impossible to bring them before the court and make them parties to the proceedings. The defendant demurred to the bill upon two grounds: (1) "Because the holders and owners of all of the bonds are not made parties"; and (2) "because complainant is not entitled to the relief prayed for—a sale of the mortgaged premises." The learned vice chancellor before whom the matter was heard advised an order overruling the demurrer. From the order so advised, this appeal is taken.

The order will be affirmed.

The demurrer admits the truth of the facts stated in the bill. Although, as a general rule, a trustee who files a bill to foreclose a mortgage held by him should make his cestuis que trust parties, that rule has its limitations. It is only applicable when the cestuis que trust are known, and are not so numerous as to make it impossible, or highly inconvenient, to include them as parties. Butler v. Farry, 68 N. J. Eq. 760, 63 Atl. 240.

The contention that the complainant is not entitled to a decree ordering a sale of the mortgaged premises is, of course, without substance. The holder of a mortgage is, after default, entitled to foreclose the equity of redemption. The order for sale following a decree of foreclosure is in the interest of the owner of the mortgaged premises. It relieves him from the hardship of a strict foreclosure. The second contention of the demurrant could only have substance upon the theory that there was no equity of redemption in him to be foreclosed.