Davis v. Piggott

• Decision Date: 24 February 1898
• Parties: DAVIS v. PIGGOTT et al. CRESSMAN v. SAME. DE WITT v. KANIPER.
• Court: New Jersey Court of Chancery

39 A. 698

56 N.J.E. 634

DAVIS

v. PIGGOTT et al.

CRESSMAN

v. SAME.

DE WITT

v. KANIPER.

Court of Chancery of New Jersey.

Feb. 24, 1898.

(Syllabus by the Court.)

Suits by William M. Davis against Edward Piggott and others; by David Cressman, administrator, etc., against David Piggott and others; and by James D. De Witt against John C. Kaniper and others,—to foreclose mortgages. The three suits were tried together. Rights of the several mortgagees determined.

O. D. McConnell, for complainant Davis. Joseph M. Roseberry, for defendant Cressman.

I. W. Schultz, for defendant De Witt Henry S. Harris, for defendant Paxton. George M. Shipman, for defendant Shober.

George A. Nichol, for defendants Rush and Butler.

REED, V. C. These are three suits for the foreclosure of three mortgages. They were tried together. The contest concerns the priorities of the respective mortgages. One Kaniper owned a tract of land containing 181.40 acres (which will hereafter be styled the "181-acre tract"). He executed a mortgage upon this tract in March, 1873, to Christian and Levi Cressman, to secure two bonds, each one for $1,000,—one held by Christian, and the other by Levi, Cressman. In March, 1875, Kaniper made a second mortgage upon the same tract to James D. He Witt, for $600. In March, 1876, Kaniper sold off, from the 181-acre tract, 111.24 acres (which will hereafter be styled the "111-acre tract"), to one Edward Piggott. Piggott gave back to Kaniper a mortgage dated March 14, 1876, for $2,000, to secure part of the purchase money. This mortgage was on June 18, 1877, assigned to W. H. Lawall. By a release dated November 29th, and acknowledged and recorded December 15, 1877, Christian and Levi Cressman released the 70 acres still owned by Kaniper after the sale of the 111-acre tract to Piggott, from the lien of their mortgage. To the release was added an agreement signed by De Witt, the holder of the second mortgage on the whole 181-acre tract, and by Lawall, the assignee of the mortgage made by Piggott to Kaniper on the 111-acre tract. This agreement is in the following words: "We, the subscribers, James D. De Witt and William H. Lawall, who hold subsequent incumbrances on the premises herein described, do hereby consent that the said premises be released and discharged as is herein set forth, and do, for the consideration of one dollar to each of us in hand paid, agree that in case the said Cressman or either of them attempt to collect the said mortgage or either of the bonds thereby secured, that in that case the said De Witt and Lawall agree that the moneys secured thereby and the interest and costs shall be first collected out of the premises (covered by said mortgages) remaining after the part is released as is therein set forth. Dated December Gth, 1877. J. D. De Witt W. H. Lawall." This agreement was not recorded. Afterwards, on March 12, 1886, the administratrix of Lawall, deceased, assigned the Kaniper mortgage to William M. Davis, the complainant in the first suit. Kaniper sold, of the 70 acres remaining after the sale of the 111-acre tract to Piggott, in four parts, as follows: (1) To Thomas Butler, November 14, 1877, 8.51 acres, for $153.18, the expressed consideration; (2) to Thomas Miller, on December 15, 1877, 32.15 acres, for $1,125.25, the expressed consideration; (3) to Rosetta Rush, on December 29, 1877, 9.70 acres, for $175, the expressed consideration; (4) to S. V. Davis, on January 1, 1878, 22.15 acres, for $725, the expressed consideration. The order in which these three suits were instituted is as follows: On April 17, 1897, William M. Davis filed a bill to foreclose his mortgage upon the 111-acre tract. Among others, he made parties to the suit Cressman, who held the oldest mortgage upon the 181-acre tract, and De Witt, the holder of the second mortgage upon the same tract, and Davis, the holder of the Kaniper mortgage upon the 111 acre tract. The prayer of the bill is that the Davis mortgage may be decreed to be the first lien upon the 111-acre tract Subsequently, while this suit was pending, James D. De Witt, on July 8, 1897, filed his bill to foreclose his $600 mortgage upon the whole tract, charging that, by virtue of the release executed by the Cressmans, his mortgage became a first lien upon the 70-acre tract, and a second lien next in order after the Cressman mortgage upon the 111-acre tract. He prays that the whole tract may be sold. To this suit all the preceding parties are made defendants. On the same day, namely, July 8, 1897, the administrator of Christian Cressman filed his bill to foreclose the Cressman mortgage, so far as it secured the bond for $1,000, which has been held by Christian Cressman, now deceased. To this bill, Davis, the complainant in the first suit and a defendant in this suit, has filed a plea in abatement and an answer. The plea is grounded upon the pendency of his own suit, in which the same facts are pleaded, and in which the administrator of Christian Cressman is a defendant. The answer claims that the lien of the Cressman mortgage upon the 111-acre tract covered by complainant's mortgage is extinguished by the release given by the Cressmans of their lien upon the 70 acres. The effect of this plea will be reserved.

I will proceed to consider the relative status of the holders of the several mortgages under the facts displayed upon the hearing. It appears that when Kaniper, the owner of the 181-acre tract, sold 111 acres from it to Piggott, there were upon the whole tract two mortgages,—the oldest, the Cressman $2,000 mortgage; and the next, the De Witt $600 mortgage. By the sale to Piggott of the 111-acre tract, the 70 acres retained by Kaniper became first liable for the payment of these mortgages. Then Piggott gave to Kaniper the $2,000 mortgage on the 111-acre tract. After this mortgage was made, the condition of affairs was this: The 111-acre tract became liable, first, for that part of the amount secured to Cressman and De Witt left unpaid after the sale of the 70 acres; and, secondly, liable for the $2,000 secured by the mortgage made by Piggott to Kaniper. This was the position of affairs when the Kaniper mortgage was assigned to Lawall. Afterwards the Cressmans released the 70 acres still owing by Kaniper from the lien of their $2,000 mortgage. They executed this release with knowledge of the existence of the Kaniper mortgage upon the 111-acre tract. Their knowledge of its existence is admitted in the pleadings; for the fact of such knowledge is charged in the bill of Davis, and is not denied by Cressman or Paxton, the owners of the Cressman mortgage, both of whom filed answer to the Davis bill. Besides, the release was acknowledged December 15, 1877. Attached to this release, and upon the same sheet upon which the...