Childs v. S. Jersey Amusement Co.
Decision Date | 19 November 1923 |
Citation | 122 A. 803 |
Parties | CHILDS v. SOUTH JERSEY AMUSEMENT CO. |
Court | New Jersey Supreme Court |
Appeal from Court of Chancery.
Suit by S. Canning Childs against the South Jersey Amusement Company. Decree for complainant, and defendant appeals. Affirmed.
William S. Darnell, of Camden (William C. Waltman, of Philadelphia, Pa., on the brief), for appellant.
William J. Kraft, of Camden, for respondent.
This is an appeal from a decree of foreclosure on a bill filed by the complainant, Childs, against the amusement company. The mortgage in suit bears date August 6, 1921; it was given to secure the payment of $40,000, and was payable, by its terms, in one year from its date. The only defense set up as a bar to the foreclosure was that, when the giving of the mortgage was being arranged for, it was represented by the defendant to a Mr. Kraft, who was acting for the complainant, that it was unwilling to give a mortgage payable in one year from date, and that thereupon Kraft, as the duly authorized agent of the complainant, Childs, stated that payment of the mortgage would not be required at the end of the year, but that, notwithstanding the due date expressed in the instrument, it should not be payable until the expiration of two years from its making and delivery, and that, upon the faith of this statement and representation, the mortgage was then executed and delivered by the defendant.
Assuming that such an agreement as is outlined above was entered into between the parties, it constitutes no defense to a foreclosure of the mortgage. By the express provision of the writing, it is payable at the end of one year from its date, and this written provision cannot be altered or varied by any prior or contemporaneous parol agreement. In the case of Parker v. Jameson, 32 N. J. Eq. 222, a similar defense was attempted to be set up in a foreclosure proceeding; that is, that at the time of the delivery of the mortgage a parol agreement was entered into between the parties thereto, by which the defendant was not to be required to pay the mortgage according to its terms. Vice Chancellor Van Fleet, in dealing with this defense, says:
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