Datz v. Barry
| Decision Date | 07 January 1934 |
| Docket Number | No. 50.,50. |
| Citation | 169 A. 685 |
| Parties | DATZ et ux. v. BARRY et al. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
1. On summary motion, heard on ex parte affidavits, to strike an answer in foreclosure because sham, defendants having shown bona fides with colorable support in the proofs, plenary knowledge being confined to adverse parties or persons with hostile interests, held that the support for the answer was adequate to carry the defense over to a time when there would be opportunity to compel the attendance of witnesses by subpoena and to cross-examine those produced adversely.
2. Defendants, obligors on the bond accompanying the mortgage under foreclosure, brought into the foreclosure proceedings so that they might be held on the bond to any resulting deficiency, having, for many years, had no ownership of or control over, and no current rights or obligations relating to, the property and disputing the amount alleged by the complaint to be presently due on the mortgage debt as well as the amount of the rental receipts and the disbursements therefrom by the complainants, held defendants are entitled to be heard on the proof of the amount of the debt and on the discovery and proof of the items of such receipts and disbursements.
Appeal from Court of Chancery.
Suit by Albert Datz and wife against William J. Barry and others. From an order embodying a decree pro confesso against him, striking out the answer of the defendant named as sham, an appeal was taken.
Decree reversed.
Insley, Vreeland & Decker, of Jersey City (Alfred R. Becker, of Jersey City, of counsel), for appellants.
Harry H. Harris, of Jersey City, for respondents.
The bill of complaint in foreclosure alleged that Barry and his wife had executed the bond and the mortgage on January 30, 1924, and had subsequently conveyed the lands to Onufrow; that Onufrow, having meanwhile conveyed the lands out and later recovered them, conveyed the same, on August 23, 1932, to one Fuller; and that the mortgage had become due. Barry, brought in as a party defendant, filed his answer denying certain allegations of the bill and setting up as a part of the defense that there was nothing due to the complainants on the bond and mortgage. Complainants moved before Vice Chancellor Bigelow to strike the answer as sham, and an order was granted accordingly. It is from that order, embodying a decree pro confesso against Barry, that the appeal is taken.
The conceded purpose of the complainants in bringing Barry into the proceedings was to hold him ultimately responsible on the bond. He was a proper, though not a necessary, party, Andrews v. Stelle, 22 N. J. Eq. 478, and, inasmuch as he was joined, a decree against him would be res adjudicata in an action on the bond for the deficiency as to any defense he might have set up herein Mutual Savings Fund Harmonia v. Gunne, 110 N. J. Law, 41, 164 A. 43. The deficiency, if any, will be the amount by which the debt, as adjudged in the foreclosure decree, exceeds the proceeds from the foreclosure sale. Vanderbilt v. Brunton Piano Company, 111 N. J. Law, 596, 169 A. 177: The decree pro confesso will leave Barry where he will not be entitled to notice of the taking of proofs leading up to the foreclosure decree. Martin v. Morales, 102 N. J. Eq. 535, 142 A. 31. Consequently, it appears that, as matters now stand, Barry will be helpless to dispute either the deficiency, if there be one, or his liability thereon.
The only proofs before either the Vice Chancellor or us are the ex parte affidavits submitted on the making of the motion to strike. They disclose that Fuller holds as the nominee of, and dummy for, the complainants who, for their own purposes, procured, for the consideration of $300 paid by them to Onufrow, a conveyance of the lands from the latter to Fuller. In that conveyance was this clause: "Subject to all mortgages, taxes, liens of record and otherwise from which the parties of the second part agree to save the parties of the first part harmless." The undertaking was made ostensibly by Fuller but actually by Date. We are obliged to assume that the language of the quoted clause included within its terms complainants' mortgage, and this gives rise to the question: From what was Onufrow to be saved "harmless"? Not from the mortgage itself because that was a burden only upon the lands and the lands were being conveyed; not from the strict wording of the bond for that instrument was in the hands of complainants and did not mention Onufrow. From what, then, other than an assumption of the debt which the mortgage...
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...joinder requirement is to make the foreclosure judgment res judicata as to the amount of the unpaid mortgage debt, Datz v. Barry, 115 N.J.Eq. 84, 85, 169 A. 685 (E. & A.1934); Montclair Savings Bank v. Sylvester, supra, 122 N.J.Eq. at 524, 194 A. 811; Usbe B. & L. Ass'n v. Ocean Pier Realty......
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...a time when the testimony shall be orally given and the rights of subpoena and of cross-examination may be exercised." Datz v. Barry, 115 N.J.Eq. 84, 87, 169 A. 685, 686. Turning now to the answer filed in the present cause, it is observed that paragraph 2 denies that only $100 has been pai......
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