Fid. Union Title & Mortgage Guar. Co. v. Magnifico

• Court: New Jersey County Court
• Writing for the Court: FIELDER, Vice Chancellor.
• Citation: 151 A. 499
• Decision Date: 29 September 1930
• Parties: FIDELITY UNION TITLE & MORTGAGE GUARANTY CO. v. MAGNIFICO et al.

151 A. 499

FIDELITY UNION TITLE & MORTGAGE GUARANTY CO.
v.
MAGNIFICO et al.

Court of Chancery of New Jersey.

Sept. 29, 1930.

Syllabus by the Court.

In the absence of statutory regulation, priority of liens is to be governed ordinarily by the date of their acquisition.

Syllabus by the Court.

A purchase-money mortgage is a lien on the mortgaged lands prior to a previous judgment recovered against the mortgagor.

Syllabus by the Court.

The equity of redemption a vendee acquires by his deed is subject to the lien of a prior judgment against him, and such judgment has priority over a mortgage to secure future advances given by a vendee at the very time he acquires title.

Syllabus by the Court.

Where there are three incumbrances on the same land, the first of which is entitled to priority over the second, but is subordinate to the third, which is subordinate to the second, they will be marshaled as follows: The third, being for a sum less than the first, will take precedence and consume the first to that extent only; then the first for the amount due thereon, less the sum required to satisfy the third; then the second for its full amount; and finally the first for the balance due thereon.

Suit by the Fidelity Union Title & Mortgage Guaranty Company against Carmelo Magnifico and others to foreclose a mortgage. On exceptions to master's report determining priority of liens.

Exceptions dismissed.

Hood, Lafterty & Campbell, of Newark, for complainant.

Herman Greenstone, of Hackensack, for defendant Walker Cement Products, Inc.

Joseph W. Marini, of Cliffside, for defendant Tregger Co.

FIELDER, Vice Chancellor.

The defendant Walker Cement Products, Inc., recovered judgment April 25, 1929, in the Bergen circuit court against Carmelo Magnifico for $1,284.07. The nature of the debt for which judgment was rendered does not appear. By deed dated April 30, 1929, recorded May 14, 1929, the Tregger Company

151 A. 500

conveyed a vacant plot of land in Bergen county to Magnifico, the deed reciting that the conveyance was made subject to a first mortgage given to the Fidelity Union Title & Mortgage Guaranty Company for $7,500 and to a second mortgage given to the Tregger Company for $1,250, both of even date with the deed and to be recorded simultaneously therewith. Said two mortgages were executed by Magnifico and wife, both dated April 30, 1929, and recorded May 14, 1929; the one to the Fidelity Company reciting that it was given to secure part of the purchase price for the conveyance to Magnifico, and the one to Tregger Company reciting that it was subject to the Fidelity Company's mortgage and was given to secure part of the said purchase price.

The Fidelity Company filed a bill to foreclose its mortgage, making the Walker Company and the Tregger Company defendants and claiming priority over both. The master to whom it was referred to take an account and to report priorities found that the Fidelity Company had advanced on its mortgage $1,100 which paid part of the consideration for the conveyance to Magnifico, and that after recording its mortgage it had advanced from time to time the further total sum of $4,900 toward the construction of a new building on the mortgaged premises, and he reported the total sum of $6,000, with interest, due on the Fidelity Company's mortgage. He further reported that $1,250 secured by the Tregger Company's mortgage represented the balance of the purchase price due from Magnifico to that company for its conveyance, and that such sum, with interest, was due thereon, and that the full amount of the Walker Company's judgment $1,284.07 was due on that judgment. He further found and reported that the Fidelity Company's mortgage to the extent of $1,100 and the Tregger Company's mortgage to the full amount thereof were liens on the mortgaged premises, as purchase-money mortgages, prior to the lien of the Walker Company's judgment, and that the Walker Company's judgment was a lien prior to the balance of $4,900 due on the Fidelity...