Chancellor v. Bell

• Decision Date: 22 May 1889
• Citation: 17 A. 684,45 N.J.E. 538
• Parties: THE CHANCELLOR et al. v. BELL et al.
• Court: New Jersey Court of Chancery

17 A. 684

45 N.J.E. 538

THE CHANCELLOR et al.

v. BELL et al.

Court of Chancery of New Jersey.

May 22, 1889.

(Syllabus by the Court.)

Bill for reformation.

F. S. Olds, for complainants. H. K. Coddington, for defendant Bell. L. Van Blarcom, for defendant Hedges.

BIRD, V. C. In 1869 there was a sale of land under proceedings in partition in this court. Over $22,000 of the proceeds were ordered to be invested on bond and mortgage in the name of the chancellor, so that the interest should be paid to Mrs. Shotwell, the widow of the deceased ancestor; and of this sum $904.11 were so secured on the land which had been purchased by Mr. Bell, as hereinafter named, but such bond and mortgage were only made to the chancellor and to his assigns, the word "successors" having been omitted. The interest on this mortgage being unpaid, in 1873 Mrs. Shotwell, the widow, filed her petition for that purpose, and obtained leave to foreclose said mortgage. In 1874, in December, a decree was entered directing a sale of the mortgaged premises. A sale was effected in May, 1875. Mrs. Shotwell was the purchaser. Upon the petition of Mrs. Shotwell the chancellor directed a special master to invest the sum of $904.11 on bond and mortgage, secured by good real estate, in such manner that the interest should be paid to the said Mrs. Shotwell. The master took such bond and mortgage from Mrs. Shotwell, the mortgage being on the land which she had so purchased under the last-named sale. This mortgage was also taken to the chancellor and his assigns, the word "successors" being omitted, and so, also, was the clause requiring the payment of interest omitted. Mrs. Shotwell only held the title to the land covered by this mortgage from May until the following October, when she conveyed it to the defendant Dr. Hedges. In October, 1882, Dr. Hedges conveyed this land to Emma Bell, one of the defendants, and took back from her a mortgage to secure the sum of $1,346, so much of the purchase money. This mortgage he assigned to Nelden, his nephew, who filed his bill to foreclose it; but proceedings thereon were stayed by an order of this court after the bill in this cause was filed. Mrs. Shotwell assigned all of her right, title, and interest of every kind in the bond and mortgage so given by her to the chancellor to Compton, one of the complainants, and he brings this suit to foreclose this mortgage.

The bill sets out the origin of both of the said mortgages, and all the transactions respecting them; the petition for the investment of the money; the order of the court authorizing the master to invest it; the fact that it was invested; and the manner in which it was done in each case; and shows that there were no words of inheritance or succession in either of the said mortgages, and that there was no provision in the latter for the payment of interest to Mrs. Shotwell, as widow, during her life.

The prayer of the bill is that both of the said mortgages be reformed by adding the word "successors" in each, in the appropriate places, and by inserting a clause in the latter one providing for the payment of interest to Mrs. Shotwell during her life, and that both be foreclosed. Do these mortgages require to be reformed in order to express the true intention of the parties? Of this I have no doubt under the evidence. The orders of the court, the situation of the parties, and the object in view at the time of the execution of them, make this most apparent to my mind. The court meant to do right, and not to consent to the perpetration of such a wrong as might have ensued from a security so imperfect. Although the orders of the court did not direct the master to insert the word "successors," it was as clearly implied as though it had; for the court intended to accept nothing less than the highest and best security known to the law; and that the word "heirs" is essential to pass a fee-simple in a grant is so well settled that authorities need only be referred to. Adams v. Ross, 30 N. J. Law, 505, 511; Kearney v. Macomb, 16 N. J. Eq. 189; Sisson v. Donnelly, 36 N. J. Law, 433; Pidcock v. Melick, 4 Atl. Rep. 98. But the word "successors" in a deed to a corporation aggregate is not essential in order to pass a fee. 2 Prest. Est. 42. "A body corporate aggregate of many persons capable of being continued by succession, as a mayor or commonalty, will take an estate in fee, although no words of limitation are stated in the grant to them extending in terms the benefit of the grant to the successors; while in a grant to a corporation sole the words 'successors' must be used, in most instances, and with very few exceptions, as equivalent to the word 'heirs' in a gift to a natural person." This author again (Id. 48) says: "Sole corporate may take an estate in fee without any words of limitation or succession in those instances in which the grant is to the corporation by its corporate or collective name, and not merely by that term or appellation which in common acceptance applies to the individual in whose person the character of the corporation especially is fulfilled." See, also, Id. 50; 1 Co. Litt. 9, a; Overseers v. Sears, 22 Pick. 122; Ang. & A. Corp. § 172. And it seems to be fully settled that, when the chancellor is acting in any such capacity as is here represented, he is to be regarded as acting as a corporation sole. Chancellor v. Hoxsey, 41 N. J. Law, 217. Has the court the power in this suit to deal with that former mortgage, it having been foreclosed by a decree, and a sale made by that decree? No objections have been taken to the bill because of the allegations or prayers in this respect. I have, however, no doubt as to the ability of the court, upon a proper bill being framed, in a case like the present, all of the parties being in court, to deal with such cases in a single suit; and if this bill should appear to be inadequate to meet all of the issues raised by the evidence, or to sustain the prayers annexed thereto, proper amendments can be made. In my judgment the mortgages should be reformed by inserting the word "successors" in the...