Flemming v. Iuliano
| Decision Date | 20 June 1921 |
| Docket Number | No. 64.,64. |
| Citation | 114 A. 786 |
| Parties | FLEMMING v. IULIANO et al. |
| Court | New Jersey Supreme Court |
Appeal from Court of Chancery.
Bill by Robert L. Flemming against Carmine Iuliano and others. From order made on motion to strike out bill, the plaintiff appeals. Affirmed.
The following is the opinion of Fielder, V. C, in the lower court:
The bill of complaint is filed to foreclose a mortgage dated July 15, 1915, given to James McElroy and Maud McElroy, his wife, covering lands in this state. The bill alleges that James McElroy died intestate December 8, 1917, that no letters of administration were granted on his estate, and that on Novembet 28, 1919, his wife, said Maud McElroy, assigned the mortgage to complainant. There is no allegation that prior to the time of such assignment she had acquired any interest in the mortgage in addition to her original interest, and there is no allegation that complainant holds the mortgage under any claim or title other than said assignment to him. The defendants to the suit are the present owners of the land and a subsequent mortgagee and they now move to strike out and dismiss the bill of complaint on the ground that the legal representatives of James McElroy, deceased, have an interest in the mortgage and are therefore necessary parties to this suit.
This objection to the bill of complaint is well taken. On the facts set out in the bill, McElroy and his wife held the mortgage as tenants in common, and not as joint tenants, and upon his death one-half interest therein became vested in his legal representatives (Aubry v. Schneider, 69 N. J. Eq. 629, 60 Atl. 929), and, if they have not assigned such interest, they are necessary parties to this suit. I shall, however, not strike out or dismiss the bill, but I shall permit complainant to amend, either by setting up any further facts upon which he bases his claim to sole ownership of the mortgage, or, if he has no such legal claim, by adding the legal representatives of James McElroy as parties to this suit.
Defendants may have costs on their motion.
Joseph Anderson, Sr., of Jersey City, for appellant.
Alfred J. Grosso, of Orange, for respondents.
The order appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice
Chancellor Fielder.
BERGEN, J., votes for reversal.
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