Mettlar v. Conover

• Decision Date: 11 February 1907
• Citation: 65 A. 464
• Parties: METTLAR v. CONOVER et al.
• Court: New Jersey Court of Chancery

65 A. 464

METTLAR

v. CONOVER et al.

Court of Chancery of New Jersey.

Feb. 11, 1907.

Bill by George W. Mettlar against David A. Conover and others. Heard on demurrer to bill. Demurrer overruled.

Freeman Woodbridge, for complainant. Theodore B. Booraem and Willard P. Voorhees, for demurrants.

EMERY, V. C. This bill to foreclose, which is demurred to, discloses the following facts:

Complainant on April 28, 1806, purchased from defendant David A. Conover two tracts of land in Middlesex county, described in the bill, for $933, and the land was conveyed to complainant by Conover by deed of full covenants and warranty. David A. Conover's title to one-half interest in the lands was derived by deed from Cornelius N. Conover and others, dated December 11, 1895, and at the time of the conveyance by David A. Conover to complainant there was a judgment obtained in the Supreme Court on December 12, 1893, against Cornelius Conover and William Allen, in favor of the Mapes, etc., Guano Company, for $1,130.11, which judgment appeared of record as a lien against the lands conveyed to complainant wholly unsatisfied. David A. Conover, the vendor, to induce complainant to take the deed, and for further protection against the judgment, and pay the consideration, executed and delivered with the deed a bond to complainant, in the penal sum of $1,500, with the following recitals and condition: "Whereas the said David A. Conover has by warranty deed, bearing even date herewith, conveyed to said George W. Mettlar certain lands in said county therein described and whereas the equal undivided one half part of said lands may be subject to the lien of a certain judgment entered in the Supreme Court of New Jersey on the 12th day of December, 1893, against Cornelius Conover and William Allen in favor of The Mapes Formula and Peruvian Guano Company for the sum of one thousand one hundred and thirty ($1130 11/100) dollars and eleven cents, damages and costs. Now the condition of this obligation is such that if the said David A. Conover shall protect the said lands and the whole thereof from levy and sale under said judgment and shall also within three years duly cause all lien arising out of said judgment to be removed from said lands and said lands to be freed and discharged from all such lien, and shall save harmless the said George W. Mettlar, his heirs and assigns of and from all damage, loss, cost and expense by reason of said judgment, then this obligation to be void; otherwise to be and remain in full force and virtue." This bond was secured by the mortgage now sought to be foreclosed, given by David A. Conover to complainant on two other tracts of lands, situate in Middlesex county; the proviso and condition of the mortgage being "that if the said David A. Conover, or his heirs * * * should well and truly pay, or cause to be paid, unto the said George W. Mettlar, or to his certain attorney * * * the sum of $1500, according to the conditions of the said bond, according to the true intent and meaning thereof," the mortgage should be void. The vendor, it is alleged, did not within three years of the date of the bond cause the lien arising from the judgment to be removed from the lands conveyed, and did not cause the lands to be freed and discharged from such lien within that time. And it is further alleged that on August 10, 1901, one Edwin Allen, who had, by an order of this court made on July 2, 1901, been subrogated to the lien of the judgment, filed his bill in this court to satisfy the judgment (to the extent to which he was subrogated) by a sale of the lands conveyed to complainant, and complainant was made a party defendant to this suit of Edwin Allen. At the time of the commencement of this suit David A. Conover was out of the state of New Jersey, his whereabouts then unknown to complainant, and he was then, and still is, without financial responsibility, and unable to protect complainant under the covenants of warranty. The complainant, under advice of counsel, filed an answer and defended the suit, and on July 13, 1903, the bill was dismissed, with costs as against complainant, and as against the lands conveyed to him by David A. Conover. The expense to complainant of defending this suit to enforce the judgment against his lands, for counsel fees, expenses, and costs, was $233.40, and it is claimed that the repayment of these expenses is secured by the bond and mortgage in question.

The defendants Mrs. McLaughlin and Mrs. Parker, who are, respectively, grantees of the two lots covered by the mortgage, by conveyances subsequently made, demur to the bill—Mrs. McLaughlin for the reason that by the bill itself it appears that the condition has been fully performed; and the defendant Mrs. Parker for a number of reasons, which cover specifically the same general point, and, in...