Carter, Jr. v. Smith

• Decision Date: 31 October 1886
• Citation: 42 N.J.E. 348,7 A. 575
• Court: New Jersey Supreme Court
• Parties: CARTER, Jr., v. SMITH.

7 A. 575

42 N.J.E. 348

CARTER, Jr.,

v. SMITH.

Prerogative Court of New Jersey.

October Term, 1886.

Appeal from orphans' court, Morris county.

J. J. Bergen, for appellant.

H. C. Pitney, for respondent.

RUNYON, Ordinary. Letters of administration upon the estate of Zachariah Z. Smith, deceased, were issued on the fourteenth of October, 1884, by the surrogate of Morris county to Richard H. Stephens and Stephen Babbitt. An order requiring creditors to bring in their claims within nine months was made on the same day. On the ninth of January, 1385, and within the time so limited, Lemuel F. Carter, Jr., duly presented his claim against the estate upon oath. The claim was based upon a bond made and given by the intestate to him. To secure the payment of the bond the intestate gave him a mortgage dated April 11, 1882, made by the former upon real estate of his, which mortgage the appellant held when he so presented his claim.

On the third of August, 1885, an order barring creditors was made. January 25, 1886, notice was given by the administrators that the report of claims, and of the amount of the personal and real estate, would be made on the fifth of April then next, and that an application would be then made to declare the estate insolvent. The report of claims was made, and exception was taken, March 30, 1886, by the respondent, a creditor, to the claim of the appellant, upon the ground that the mortgage had been foreclosed since the death of the intestate, and the premises sold upon the twenty-second of August, 1885, for $3,500, and that no suit was brought upon the bond to recover the deficiency within six months from that time, nor at any other time, so that, it was insisted, thus the equity of redemption in the mortgaged premises was extinguished, and the appellant accepted the property in satisfaction of the debt. The orphans' court by their order sustained the exception, and disallowed the claim. From that order the appeal was taken.

The exception was based upon the provisions of the act of 1881, "to amend an act entitled 'An act concerning proceedings on bonds and mortgages given for the same indebtedness, and the foreclosure and sale of mortgaged premises thereunder,' approved March 12, 1880." P. L. 1881, p. 184. By that act the act of 1880 was amended so that it provided that, in all cases where a bond and mortgage had been or might thereafter be given for the same debt, all proceedings to collect the debt should be first to foreclose the mortgage; and if, after applying the proceeds of the foreclosure sale, there should be a deficiency, suit therefor upon the bond must be commenced within six months from the date of the sale; also that if, after the sale, the person entitled to the debt should recover a judgment in a suit on the bond for any balance of the debt, the recovery should open the foreclosure and sale of the mortgaged premises, and the person against whom the judgment should be recovered might redeem the property by paying the full amount for which the decree was rendered, with interest from the date of the decree, and all costs of proceedings upon the bond: provided, that a suit for redemption be brought within six months after the entry of the judgment for the balance of the debt. The mortgage in this case was given after the...