Coogan v. McCarron

• Decision Date: 11 November 1892
• Parties: COOGAN v. McCARRON.
• Court: New Jersey Court of Chancery

25 A. 330

50 n.j.e. 611

COOGAN

v. McCARRON.

Court of Chancery of New Jersey.

Nov. 11, 1892.

(Syllabus by the Court.)

Bill by MaryCopgan against DENNIS MC CARRON for an accounting, and to redeem land of which defendant is in possession as mortgagee. Defendant moves to strike out the bill. Granted.

Warren Dixon, for the motion.

Gilbert Collins, opposed.

PITNEY. V. C. This is a motion to strike out the bill under the 215th rule, instead of a demurrer. The bill is in the nature of a. cross bill, and is a continuation of the litigation dealt with in an opinion reported subnom. McCarron v. Coogan, 50 N. J, Eq. —, 24 At). Rep. 1033. The bill here drawn in question was filed after the promulgation of that opinion, and before the order dismissing the bill of McCarron was actually signed in accordance with the opinion. It sets out the same facts comprised in that bill; the giving of the bond and mortgage by Tomney to one Anderson for $150, and the assignment thereof to McCarron; and the death of Tomney intestate, leaving his widow surviving; the possession of the mortgaged premises by his widow until she died; the taking possession by McCarron, as mortgagee, more than 20 years before bill filed, and his continuance in possession as mortgagee to the present time. It states the heirs of Tomney as they wero stated in McCarron's bill, and shows title in complainant to the equity of redemption of the mortgaged premises. It then sets out the filing of the bill by McCarron, founded on the mortgage before set out, and also a mortgage for $100, executed by the widow of Tomney after the husband's death, and alleges that she had no title. It then states that the McCarron bill "claims that the sum of one hundred and fifty dollars principal money secured by the bond and mortgage first mentioned, together with interest from June 1, 1861, still remains due and unpaid to him;" and that McCarron, by said bill, "prays for an accounting by and under the direction of this court of what is due and owing to him under said mortgage, and that the defendants in said bill [of which the now complainant is one] may be decreed to pay to him the said principal sum of money," etc., "by a short day," etc., "and that, in default thereof, the said defendants may be foreclosed of and from ail right, title, and equity of redemption in and to the said mortgaged premises," etc. The hill proceeds to state that complainant, as defendant to that bill, filed her answer thereto, admitting the bond and mortgage first mentioned, and other facts stated in the bill, and setting up in her answer her right by inheritance, devise, and conveyance, as before stated in her bill; admitting in her answer McCarron's right to call upon the owner of the premises to redeem the first mortgage, and praying in her answer that she may be permitted to redeem accordingly. The bill herein proceeds to state that to her said answer a general replication was filed, and the cause proceeded to hearing according to the practice of the court, and that proofs were taken and showed facts not stated in the opinion of McCarron v. Coogan, and that it now remains undetermined; and that McCarron had given notice to complainant, as defendant to her bill, to dismiss his bill. The bill proceeds to state that, by reason of the control of the suit upon McCarron's bill being in him, complainant is unable to cause the same to proceed to an accounting and a decree of redemption, and therefore resorts to this cross bill. The prayeris that an accounting may betaken of the money due to McCarron upon the firstmentioned mortgage, and of any lawful claim of McCarron upon the premises, and of the rents, issues, and profits received by him, and the taxes, repairs, and other lawful charges paid by him, and that the net amount due him, if any, be ascertained, etc., and that she may be permitted to redeem the premises, with an offer to pay whatever may be found due to McCarron, etc.

The following reasons were alleged for striking out this bill:

1. That it was filed after the opinion was filed giving McCarron the right to dismiss the original bill, and that it cannot operate as a cross bill. If by this it is meant to assert that it cannot operate as a defense to the original bill, the point is well taken. The difficulty is that Miss Coogan, the now complainant, did not "defend" the original bill in the sense of denying the right of the complainant therein to the relief he asked, but acquiesced in it. The only dispute between the parties...