Field v. Thistle

• Decision Date: 24 June 1899
• Citation: 43 A. 1072,58 N.J.E. 339
• Parties: FIELD v. THISTLE et al.
• Court: New Jersey Court of Chancery

43 A. 1072

58 N.J.E. 339

FIELD

v. THISTLE et al.

Court of Chancery of New Jersey.

June 24, 1899.

A bill for deficiency by Josle Downing Field against Hugh B. Thistle and others. Sustained.

Louis A. Ziegler, for complainant.

W. Bradford Smith, for defendants Bray and Thistle.

A. F. Stevens, for defendant Royle.

Charles F. Lighthipe, for defendant McChesney.

EMERY, V. C. This is a bill for deficiency, filed by the mortgagee against Thistle, the obligor and mortgagor, and against the successive grantees of the mortgaged premises, being Royle, Bray, and McChesney, in the order named, who have, as is claimed, assumed the payment of the mortgage in their respective deeds. The mortgaged property was sold under foreclosure proceedings to which the mortgagor and the grantees were parties defendant, and a deficiency of over $900 exists. On the day before the sale, Thistle, the mortgagor, released his grantee, Mrs. Royle, from her covenant of assumption, and she also released her grantee, Bray, from his covenant to assume, made in her deed to him. The covenant of Bray with McChesney, the last grantee, has not been released, but McChesney had died since the conveyance, and his executors, who are parties as his devisees, claim that the right to recover against them is barred by reason of the failure of complainant to exhibit his claim under oath within the time limited by the order to bar creditors, upon which a decree barring creditors has been duly made. The sale under foreclosure was not made, however, until after the expiration of the time limited by the order for presenting claims, and this defense of failure to present the claim must therefore be overruled, on the authority of Terhune v. White (Runyon, Ch.; 1881) 34 N. J. Eq. 98, which holds that before foreclosure the claim is contingent, and cannot be proved against the estate.

The first question in the case is the construction of the clause of assumption in the deed from Thistle to the defendant Mrs. Royle, then Mrs. Cross. The covenant is as follows, punctuatim et literatim: "This conveyance is made expressly subject to a mortgage encumbrance of three thousand dollars, given by the said Hugh B. Thistle to the said Josie Downing Smith, dated October (1st., 1886) first, eighteen hundred and eighty six. Together with interest and taxes from October first eighteen hundred and eighty six. All of which are assumed by the party of the second part" Mrs. Royle claims that by the true construction of this covenant the clause of assumption reaches only the interest and taxes from October 1, 1886, and not the principal of the mortgage. I think, however, that "all of which" means "every one of which." and must include every one of the incumbrances previously set out, being the mortgage of $3,000, interest and taxes, and cannot be restricted to the last two incumbrances. In Wise v. Fuller (1878) 29 N. J. Eq. 257, Van Fleet, V. C. (page 266), construes a somewhat similar contract in reference to a like objection. The assumption of Mrs. Royle extends, therefore, to the payment of the mortgage; and as to form there is no question in reference to the subsequent assumptions by the other grantees. The question on these relates to the effect of the releases which were made before the beginning of this suit, but after decree of foreclosure in a suit to which all parties to the foreclosure were parties, and in which suit they were made parties, as ultimately responsible for any deficiency resulting in the sale. Complainant (by her amended bill) alleges that at the time of making the releases Thistle, the mortgagor, was insolvent, and that the releases were made in fraud of her rights as a creditor, after notice of her claim. The defendants Thistle, Boyle, and Bray, answering separately, deny the fraud charged. Mrs. Royle and Bray deny the assumption of the mortgage by Mrs. Royle, and Bray alleges, in addition, that the clause of assumption in the deed from Mrs. (Cross) Royle to him was inserted by mistake. McChesney's executors also set up the insertion by mistake in the deed from Cross to Bray, and also that the same clause was inserted by mistake in the deed from Bray to McChesney. If the releases had not been given, the defenses of alleged mistake set up in these answers could, perhaps, be considered only on cross bill. Green v. Stone (Err. & App.; 1896) 54 N. J. Eq. 387, 34 Atl. 1099, and cases cited, page 400, 54 N. J. Eq., and page 1099, 34 Atl. But it...