Cummings v. Jackson

• Decision Date: 17 November 1897
• Citation: 55 N.J.E. 805,38 A. 763
• Parties: CUMMINGS et al. v. JACKSON et al.
• Court: New Jersey Supreme Court

38 A. 763

55 N.J.E. 805

CUMMINGS et al.

v. JACKSON et al.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1897.

(Syllabus by the Court.)

Appeal from court of chancery.

Action by James Jackson against Sylvanjs D. Brown and Mary Brown, his wife, and others, to foreclose an instrument in writing given to secure the payment of money. Prom the decree, defendants James M. Cummings, Laura M. Roosevelt, and Ira D. Cummings appeal. Affirmed.

Dickinson, Thompson & McMaster, for appellants.

William I. Lewis, for respondents.

NIXON, J. The controversy in the case under review grows out of the foreclosure of an instrument in writing, made on the 14th day of August, 1882, between Sylvanus D. Brown, and Mary Brown, his wife, and James Jackson, the respondent, in order to secure to Jackson the payment of $1,900 on the 1st day of August, 1883, and not sooner, unless the parties should elect to sooner repay the same, which writing was duly acknowledged and recorded. For the payment of this sum, the said instrument pledged 19 shares of stock in the Layton Iron Company, the rents, royalties, profits, and increase derived by Mary Brown by virtue of certain leases of mining properties, known as the "Pellington Mine" and the "Brown Mine," then held under leases by the Midvale Ore Company, the right, title, and interest of Sylvanus D. Brown in a certain agreement then made, and afterwards to be formally executed, with one John Huyler, and finally stipulated and provided "that in case the Midvale Ore Company should surrender up the aforesaid lease of the said Brown Mine, or either portion thereof, or the same should become forfeited in any manner, the said instrument providing both for surrender and forfeiture, then the transfer, assignment, and conveyance hereinbefore made of the rents, royalties, profits, etc., arising out of said lease, as collateral security for the debt hereinbefore mentioned, shall be deemed to operate upon the real estate composing the said tract, known as the 'Brown Mine,' and being the subject-matter of the said lease, and this conveyance shall be held and construed to be a lien by way of mortgage upon the said real estate, as and for the said collateral security, subject to all the conditions and limitations herein contained, in so far as they may be applicable; the said two parcels of real estate being particularly bounded and described as follows, viz.: [Description of lands.]" No note or bond was given with this instrument. On March 12, 1886, Sylvanus D. Brown and Mary Brown, his wife, executed a mortgage on the same premises in question and other property, to James Jackson, Charles Du Pont Breck, and George Fisher, to secure the payment of $10,000, which was afterwards assigned to Breck, in trust for himself, Jackson, and Fisher. On March 14, 1891, Mary Brown and her husband made a lease of all the iron ores and metals and mineral substances in or upon the lands in question, to A. G. N. Vermilya, reserving an annual rent therefor of $2,500, and providing for the forfeiture and making void of said lease on the failure to pay said rent. On the same day it was mutually agreed by the Browns, Vermilya, Jackson, and Breck that the rent reserved in said lease should be paid to Jackson until the "mortgages" given by the Browns to Jackson, and to Jackson, Breck, and Fisher, should be paid, and that the mortgages should be subordinate to the lease to Vermilya, "so long as the conditions and covenants of said conveyances are kept and performed by said Vermilya, his heirs, assigns, or legal representatives." On March 17, 1891, Vermilya and wife executed a mortgage of his interest in all the ores, metals, and mineral substances in or upon the lands in question, to James M. Cummings, to secure the sum of $25,000; and on March 24, 1891, Vermilya conveyed all his interest under the Brown lease to the Midvale Miniug Company, subject to the conditions and reservations of rent contained in the lease from the Browns. On November 14, 1893, Mary Brown and her husband conveyed all their right, title, and interest in the Brown Mine lands to James M. Cummings, Laura M. Roosevelt, and Ira D. Cummings, the appellants.

The bill to foreclose the aforesaid instrument was filed August 8, 1894, and all the parties interested were made defendants; and the case was heard upon the bill, the answer, and cross bill of the appellants, and the answer and cross bill of the Midvale Mining Company, and the respective answers of Breck and Mary Brown, and the proofs; the bill having been taken as confessed against the other defendants. The chancellor decreed that the instrument set forth in the bill of complaint is a valid and subsisting incumbrance and lien, by way of mortgage, upon the estate, rights, and appurtenances therein described, against all the defendants, and that there was due on the date of the decree to the complainant James Jackson $3,534, for principal and interest; that the mortgage executed by Mary Brown and her husband to pay James Jackson, Charles Du Pont Breck, and George Fisher to secure the payment of $10,000 is also a valid and subsisting lien upon the estate, ores, mining rights, etc., and that the sum of $8,738.25 found due thereon is entitled to be secondly paid; that the mortgage of Allen G. N. Vermilya and wife to James M. Cummings, on which the sum of $33,617.90 was due, is entitled to be thirdly paid; that "all the estate, rights, title, and interest which the said Mary Brown and Sylvanus D. Brown mortgaged to the said James Jackson by the said instrument, bearing date of the 14th day of August, 1882, in the tracts of land described therein, be sold to raise and satisfy the several sums of money due"; and that the said defendants, and each of them, stand absolutely barred and foreclosed of and from any equity of redemption in the said mortgaged premises, to wit, of, in, and to "all the estate, ores, mining rights, title, and interest which the said Mary Brown and Sylvanus D. Brown, her husband, mortgaged to the said James Jackson, by said instrument bearing date August 14, 1882, when sold as aforesaid, by virtue of this decree." The foregoing are the only parts of the decree pertinent to the questions raised by the appeal. From each and every part of this decree, three of the defendants (the appellants) appealed, upon the following grounds: (1) That the instrument bearing date August 14, 1882, is not a mortgage, and does not contain words and language sufficient to convey an interest in real estate; (2) that, if held to be a mortgage upon real estate, it conveyed only an estate for the life of the mortgagors, and did not convey a fee therein; (3) that, if there was anything due under that instrument which could be held to be a lien upon the land, it was a much smaller amount than that named in the decree, and that some of the money paid to Jackson should have been credited on that instrument; (4) that, if the Instrument is not a mortgage of real...