Jones v. Parker

• Decision Date: 17 October 1969
• Citation: 107 N.J.Super. 235,258 A.2d 26
• Parties: Donald B. JONES, Plaintiff-Respondent, v. Asa C. PARKER, Hazel Parker, his wife, Tar Asphalt Service, Inc., a New Jersey Corporation, Defendants, and Sharp Bros. Building Suppliers, Inc., a corporation of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 235

107 N.J.Super. 235

258 A.2d 26

Donald B. JONES, Plaintiff-Respondent, v. Asa C. PARKER, Hazel Parker, his wife, Tar Asphalt Service Inc., a New Jersey Corporation, Defendants and Sharp Bros. Building Suppliers, Inc., a corporation of New Jersey, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 23, 1969.

Decided Oct. 17, 1969.

Nathan G. Ginsburg, Williamstown, for appellant (Kaser & Ginsburg, by Nathan G. Ginsburg, Williamstown, attorneys).

Frederick C. Schneider, III, New Brunswick, for defendant Tar Asphalt Service, Inc.

Stephen F. Lichtenstein, Trenton, for respondent (Donald B. Jones, Newark, of counsel and on the brief, Lichtenstein, Levy & Segal, Trenton, attorneys).

Before Judges SULLIVAN, CARTON and HALPERN.

The opinion of the court was delivered by

SULLIVAN, P.J.A.D.

This appeal by a judgment creditor involves a dispute between such judgment creditor and the holder of a subsequent mortgage, and a subsequent judgment creditor over the proceeds of a sale of certain real property.

The trial court held that a money judgment entered in the Superior Court, Law Division, against Ace Parker was not a lien on real estate held of record in the name Asa C. Parker and Hazel J. Parker, his wife, even though Asa C. Parker and Ace Parker were, in fact, one and the same person. On this basis the trial court ruled that a subsequent mortgage on the property made by Asa C. Parker and his wife to a bank, and a subsequent money judgment against Asa C. Parker, respectively had first and second priority as liens on the real estate. For reasons hereinafter stated we affirm.

The factual background of the case is as follows.

On March 12, 1941 Asa C. Parker and Hazel J. Parker, his wife, acquired title to a parcel of real estate on Radio Road in Little Egg Harbor Township, Ocean County, New Jersey. The deed was recorded in the Ocean County Clerk's office on April 13, 1956.

On April 24, 1963 Sharp Bros. Building Suppliers, Inc. (Sharp) instituted suit in the Superior Court, Law Division, Glouceter County, on a book account against Ace Parker, defendant, and obtained a default judgment for $16,563.49. The judgment remains largely unpaid.

Prior to 1965 Parker had a checking account and a loan account in the name of Asa Parker with the First National Bank of Tuckerton, Ocean County. In June 1965 he made application to the bank for a mortgage loan on the Radio Road property. The application was signed with the name Asa Parker. The bank approved the application and referred the matter to its attorney, who certified the title and closed the loan. In the course of the title examination the attorney ordered a 20-year judgment search against the names Asa C. Parker and Hazel J. Parker, the record owners of the property. The resulting judgment search, certified to the attorney by State Capital Title & Abstract Co., did not disclose any judgments against either name. At the closing of the mortgage loan on February 21, 1966 the attorney had Mr. and Mrs. Parker execute a bond and mortgage in the names Asa C. Parker and Hazel J. Parker, his wife. The Parkers also signed an affidavit of title in which they stated that they had not changed their names and that there were no judgments against either of them.

Thereafter, Tar Asphalt Service Inc. (Tar), which had an unpaid account with Ace Paving & Trucking Company, turned it over to counsel for collection. In reviewing the file counsel ascertained that the business was operated by a man using the name Ace Parker, with an address at Radio Road in Tuckerton, New Jersey. Upon searching the deed records in Ocean County, counsel found the recorded deed for the Radio Road property in the name of Asa C. Parker and Hazel J. Parker. He thereupon filed suit on behalf of Tar against Asa C. Parker, t/a Ace Paving Company, in the Superior Court, Law Division, Ocean County, and obtained a default judgment for some $1400 on April 10, 1967.

The mortgage fell into default in April 1967 and the Parkers vacated the Radio Road property. In anticipation of foreclosure the bank made arrangements to sell the property. A title search made on behalf of the prospective purchasers (Ernst Ambrose and wife) by M & D Search Co. of Trenton disclosed the existence of the 1963 Sharp judgment against Ace Parker, as well as the 1967 Tar judgment against Asa C. Parker, t/a Ace Paving Company. The search report was turned over to the bank's attorney who upon inquiry discovered that Asa Parker and Ace Parker were one and the same person. The attorney communicated with Donald B. Jones, plaintiff herein, the President of State Capital Title & Abstract Co. which had made the judgment search for the bank and had not reported any judgments against the names searched. Plaintiff immediately purchased the bank's mortgage for the full amount due thereon and took an assignment thereof.

Foreclosure proceedings were commenced by Jones, who joined as parties-defendants Asa C. Parker, Hazel J. Parker, Tar Asphalt Service Inc. and Sharp Bros. Building Suppliers. The suit also asked that a declaratory judgment be entered adjudicating the Sharp judgment as not a lien on the mortgaged premises. Sharp's answer and counterclaim asserts that its judgment is a lien on the property prior to and superior in right, title and interest to the mortgage lien sought to be foreclosed.

Pending the foreclosure proceeding, all the parties thereto entered into a written agreement with the Ambroses to sell the property for $10,000 and to permit the Ambroses to take possession immediately. Because of this agreement, the foreclosure aspect of plaintiff's suit was dismissed and it was agreed that the determination of the court would relate solely to the priorities of the parties in the sale proceeds.

The trial court, after a plenary hearing, decided that the names Ace and Asa were so dissimilar that the Sharp judgment against Ace Parker did not constitute notice that it was against Asa C Parker and was not a lien on the Radio Road property. Consequently, as heretofore noted, he held that plaintiff's mortgage and the Tar judgment had first and second priority respectively as to the proceeds of sale.

In New Jersey a judgment creditor has a lien on real property owned by the debtor as the implied result of N.J.S.A. 2A:17--17. A Superior Court or County Court, Law Division, judgment becomes a lien upon real estate from the time of the actual entry of such judgment on the minutes or records of the court. N.J.S.A. 2A:16--1. The statute directs the clerk of the court to keep and maintain a book known as the Civil Judgment and Order Docket and to enter an abstract of each judgment or...