Hudson Trust Co. v. Boyd

• Decision Date: 07 September 1912
• Citation: 80 N.J.E. 267,84 A. 715
• Parties: HUDSON TRUST CO. v. BOYD et ux.
• Court: New Jersey Court of Chancery

84 A. 715

80 N.J.E. 267

HUDSON TRUST CO.

v. BOYD et ux.

Court of Chancery of New Jersey.

Sept. 7, 1912.

(Syllabus by the Court.)

Suit by the Hudson Trust Company against Frank O. Boyd and wife. Heard on motion by complainant to open final decree, vacate enrollment, and dismiss the bill. Denied.

Smith, Mabon & Herr, of Hoboken, for the motion.

WALKER, C. This is an orderly foreclosure suit in which for want of appearance and answer by defendants a decree pro confesso and final decree was made and filed July 19, 1912. The proceedings have been enrolled.

Complainant's solicitors have sent to the clerk an order to open the final decree, vacate the enrollment, and dismiss the bill, "without costs and without prejudice," and it has been presented to me for signature. The "without costs," of course, means without costs against the complainant, because upon their application the clerk has already taxed a bill of costs in favor of the complainant and against the defendants in the sum of $91.68, and that sum was included in the execution which was issued and has been returned with the following indorsement: "The within execution is returned into court never having been delivered to the sheriff. Smith, Mabon & Herr, Solrs. of Complt." The "without prejudice" obviously means without prejudice to another foreclosure of the same mortgage in event of a subsequent default by defendants.

The solicitors were notified to file a warrant of satisfaction and replied that they cannot do so because the decree has not been satisfied, but that an adjustment has been reached between the complainant and the defendants by which the interest has been paid and the mortgage is to be continued. They are silent on the question of costs of foreclosure, but I assume they have been paid or secured.

Now, the mortgage is very effectually continued when merged into a decree of foreclosure, which can be enforced by execution at any time within 20 years (on notice to defendant after the lapse of 6 years), and under the terms of the decree the defendants are not foreclosed of the equity of redemption until the premises are actually sold by virtue thereof.

In fact, when merged into a decree the debt which before was one by "specialty" becomes one of "record." A "debt of record," says Blackstone, is a contract of the highest nature being established by the sentence of a court of judicature. 2 Bl. Com. 465. A "debt of record" is a sum of money which appears to be due by the evidence of a court of record. Words & Phrases, vol. 2, p. 1891. See, also, New Jersey Ins. Co. v. Meeker, 37 N. J. Law, 282, 301. A "judgment debt" is one which is evidenced by matter of record. Bouv. Law Dic. (Rawles' Rev.) 513. A "debt by specialty" is a sum of money due or acknowledged to be due by deed or instrument under seal. 2 Bl. Com. 465.

I am aware that the practice here sought to be put in force has obtained to some extent in the court. Solicitors have sent in similar orders, and they have gone through pro forma. There is, however, no warrant for such practice, and it will be discontinued.

A suit until a decree entered is under the control of the complainant, and before answer filed he may dismiss his bill at any time without payment of costs, but after an answer has been put in the bill can only be dismissed upon notice and payment of costs. Corbin's N. J. Court Rules, p. 144, Chancery rule 15a, and cases cited. See, also, Dick. Ch. Pr. (Rev. Ed.) p. 140, note a.

After decree the proceedings are under the control of the court, and will only be opened in order to prevent fraud or mistake. Consolidated Electric Storage Co. v. Atlantic Trust Co., 50 N. J. Eq. 93, 24 Atl. 229.

As I understand it, the court will not for any cause vacate the enrollment and open a decree regularly made except to let in a defense. Brinkerhoff v. Franklin, 21 N. J. Eq. 334, 336; Cawley v. Leonard, 28 N. J. Eq. 467.

The Court of Errors and Appeals, in Day v. Allaire, 31 N. J. Eq. 303, at page 315, observed that "the Court of Chancery has discretionary power, even after enrollment, to open a regular decree obtained by default, for the purpose of giving the defendant an opportunity to make a defense on the merits, where he has been deprived of such defense, either by mistake or accident, or by the negligence of his solicitor."

Decrees, as I understand it, are only opened for specified and limited purposes, remaining in existence and efficacy for all other purposes. What the complainant here desires to do is to vacate, and therefore practically annihilate, the whole record. If that were done, what its effect would be upon the debt due to the complainant I am not prepared to say. It suggests this inquiry: By the opening and vacation of a decree into which a debt formerly existing by specialty has been merged and thereby become a debt of record would the debt by specialty, namely, the mortgage, thereby be revived?

It here becomes of some importance to ascertain the difference, if any, between a decree filed and one enrolled.

In England a decree in chancery does not, strictly speaking, become a record of the court until it has been enrolled. Dan. Ch. Pl. & Pr. *1918. An enrolled decree is pleadable and can only be reversed, altered, or explained upon appeal to the House of Lords or upon a bill of review. Id. *1024. A party wishing to have it reheard must take steps to prevent enrollment by caveating against it. Id.

Our practice appears to be different, and with us an enrolled decree may be amended in this court in a proper case without a bill of review or a rehearing. Lynde v. Lynde, 54 N. J. Eq. 473, 35 Atl. 641. In the Lynde Case the alteration of the decree was sought by the complainant. In most cases it is sought by the defendant. In all cases application therefor is only considered upon notice and an opportunity afforded the adverse party to be heard.

In England until a decree has been enrolled and thereby becomes a record it may be altered by the court that made it upon a rehearing; but an enrolled decree is not susceptible of such alteration except by the House of Lords on appeal, or by a bill of review. Dan. Ch. Pl. & Pr. *1019. A decree which has not been enrolled, although it is final, is considered merely interlocutory and cannot be pleaded in bar of another suit for the same matter. Id. *1019. No appeal lies to the House of Lords against a decree or order in chancery until it has been enrolled. Id. *1492.

Our chancery act provides, in section 39 (Comp. Stat. vol. 1, p. 425), that when any cause shall be finally determined, except where a suit, bill, or proceeding shall be dismissed by consent, the clerk shall enroll the proceedings and decree; and, in section 41, that the clerk shall make the enrollment so that the record may be ready for the chancellor's signature within three months after the filing of the decree. Rule 101 of our court provides that no final decree shall be enrolled until the expiration of 10 days, unless its form has been settled by the chancellor or vice chancellor upon proper application, nor the enrollment signed by the chancellor within that time without special order; and rule 102, that every party who may be affected by any order or decree not settled by the chancellor or vice chancellor upon application shall be held to have waived all objection to the form thereof, unless he file his objection within 10 days of the filing of the order or decree. By direction of Chancellor Williamson, April 2, 1827, it was provided: "Decrees shall be enrolled in all cases where a decree has been rendered, or an order of dismissal had, or any order in the nature of a decree which determines the suit, whether such suit concerns real or only personal estate." Extract from clerk's book, Nix. Dig. 239. Our Constitution establishes the Court of Chancery in this state, and therefore our decree in chancery, its enrollment and effect, are the same as those of its English prototype, except as altered by our statute and rules of court, and, I presume, by general practice also.

Thus the decree of our court is not of record until it is enrolled, unless our chancery act or some rule of court makes it so. I am unable to find any statute or rule which in terms makes a decree of record without enrollment. While in England, as already shown, a decree cannot be appealed from unless it is of record; nevertheless, by virtue of our chancery act section 111 (1 Comp. Stat. p. 450), provision is made that an appeal from a final decree shall be taken within one year "after making such decree." This, of course, is entirely exclusive of any enrollment, as the clerk has three months within which to make up that record; and,...