Collins v. Kiederling

• Decision Date: 23 May 1916
• Docket Number: No. 38/202.,38/202.
• Citation: 97 A. 948,87 N.J.Eq. 13
• Parties: COLLINS v. KIEDERLING et al.
• Court: New Jersey Court of Chancery

97 A. 948

87 N.J.Eq. 13

COLLINS

v. KIEDERLING et al.

No. 38/202.

Court of Chancery of New Jersey.

May 23, 1916.

(Syllabus by the Court.)

Bill in equity by John Collins against Mary Kiederling and others. Heard on petition of the selling master to pay liens of creditors not parties to the suit. Petition dismissed.

Edmund A. Hayes, of New Brunswick, for complainant.

WALKER, C. This is a partition suit in which a decree for sale was made, and the property described in the bill was sold by the special master appointed for that purpose. The decree ascertains the rights of the persons seized of undivided interests therein and orders the premises sold, including the inchoate right of dower of the wife of the complainant. The selling master made his report of sale in the usual form, and it was duly confirmed. He subsequently filed a petition in the cause in which he recites that the master to whom the cause was referred for a report as to whether the lands could be partitioned or should be sold in lieu thereof, found and reported, among other things, that it appeared from the abstract of title produced before him that the undivided estate or interest in the lands of none of the parties was subject to any lien by mortgage, judgment, decree or otherwise, but that one of the tracts of which partition was sought was subject to a mortgage held by Michael Mooney. The special master in his petition also states that in making the report of sale he omitted to set forth that the tracts were sold free of all known liens and incumbrances, and that at the time of sale the mortgage mentioned and certain taxes in arrears were liens against the lands, and that the premises were sold free and clear thereof. He prays that out of the money arising from the sale he be ordered and directed to pay the amount of principal due on the mortgage on part of the premises into court, and that the mortgage be canceled of record by order of this court, and, further, that he be ordered to pay the amount of taxes in arrears.

The bill prays that, in case of a sale, the money arising from the share or interest of any party against whom there are existing liens or incumbrances held by a creditor of such party, who was a party defendant, be brought into court, etc. No creditor of any party was made a party to the suit. There was no direction in the decree for a sale free from liens and incumbrances, and yet the master reports that he made such sale "free from all known liens and incumbrances," but omitted to make mention of that fact in his report of sale. The master therefore assumed a power which was not delegated to him. It was his duty to conduct the sale in the manner ordered in the decree. Furthermore, he has no right to file a petition in the cause praying for the distribution of the moneys raised by the sale, or any part of them.

No one but a party to a suit can make any motion in it, except for the purpose of being made a party. Linn v. Wheeler, 21 X. J. Eq. 231. And a petition filed by a stranger to a suit will be dismissed. Esterbrook Co. v. Ahern, 31 N. J. Eq. 3. The conduct of suits belongs to the parties to them, and only they have the right to apply for order or direction.

This is not the case of a purchaser asking to be relieved of his bid because of the existence of any lien or incumbrance on the premises sold, under ...