Miller v. Schielke
| Citation | 154 A. 314 |
| Parties | MILLER et al. v. SCHIELKE et al. |
| Decision Date | 12 December 1929 |
| Court | New Jersey Court of Chancery |
Suit by John F. Miller and others against Charles Schielke and others, in which the named defendant filed a counterclaim.
Decree in accordance with opinion.
BUCHANAN, Vice Chancellor.
The bill is filed by the complainants for the surrender and cancellation of a bond and mortgage in the sum of $3,500, made by them to defendant Schielke.
Complainants' premises were incumbered by a first mortgage of $2,000, a second of $900, and a third of $600. The latter two mortgage loans had been made to them' by one Luella S. Comp, who later assigned the mortgages to third parties.
In the latter part of 1928, Mrs. Comp told complainants the $900 and $600 mortgages would have to be paid off. Complainants did not ask Mrs. Comp or her husband to find a new mortgage loan for them, but on October 28, 1928, the Comps called at the home of complainants with Mr. Schielke, and told them that Schielke would take a $3,500 bond and mortgage on the house, the three existing mortgages to be paid off out of the new loan.
Schielke had on a number of prior occasions given Comp funds to invest for him, relying on Comp "to see that my papers were correct and first mortgages." On October 27th (before the Comps brought Schielke to the house) he had given Comp his check for $3,500, to be invested in bond and mortgage security. Comp immediately deposited their check in his own account, and used the money for his own purposes.
On January 18th Comp came to complainants (after Schielke had on several occasions inquired of him as to why he did not get the mortgage papers), and procured them to execute the new bond and mortgage to Schielke for $3,500. He took the bond and mortgage away with him, saying he would have the three existing mortgages canceled.
The same day Comp gave the bond and mortgage to Schielke, telling him likewise he would have the three existing mortgages canceled.
The following morning Schielke saw complainants, told them the three mortgages were not yet canceled by Comp, and told them they had better see that Comp did cancel them (or words to that effect), and went to the courthouse and recorded his mortgage.
Comp in fact never had the three mortgages canceled or satisfied, and never turned over the $3,500 to complainants or any one on their behalf. It is obvious that both mortgagor and mortgagee are innocent dupes of Comp: one or the other must suffer loss as the...
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