Murray v. Pearce
| Decision Date | 15 November 1920 |
| Citation | 112 A. 314 |
| Parties | MURRAY v. PEARCE. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Suit by Margaret Murray against Elston E. Pearce. Judgment for defendant, and plaintiff appeals. Reversed.
Edwin B. & Philip Goodell, of Montclair, for appellant.
Wilfred H. Jayne, Jr., of Lakewood, for respondent.
GUMMERE, C. J. Tins suit was brought by the appellant against the respondent under the act of 1880, entitled "An act concerning proceedings on bonds and mortgages given for the same indebtedness, and the foreclosure and sale of mortgaged premises thereunder." Comp. Stat. p. 3420.
The respondent, in September, 1916, borrowed of one Philip Goodell the sum of $5,000, and, for the purpose of securing the payment thereof, executed to him a bond and mortgage for that amount, payable September 15, 1918. Some two months after the execution of the bond and mortgage, and on November 21, 1916, the respondent conveyed the mortgaged premises to one Miller, who, in turn, conveyed to Thomas F. Roach. The due day of the bond and mortgage having passed, and the mortgage debt still remaining unpaid, the appellant, Murray (who held the bond and mortgage under an assignment from Goodell), instituted foreclosure proceedings against Pearce, the maker of the bond and mortgage, and the several parties to whom the mortgaged premises subsequently passed. These proceedings were begun in January, 1919. After the time to answer had expired, there was a reference to a master, and he reported that there was due on April 21, 1919, upon the bond and mortgage, $5,165. Upon the coming in of the report a final decree was entered adjudging that this was the amount of the mortgage debt, and directing that a writ of fieri facias issue to the sheriff commanding him to make sale of the mortgaged premises to raise and satisfy the said sum, together with interest and costs. The writ was issued and delivered to the sheriff, and he, under the authority thereof, sold the premises to the highest bidder, the amount produced by the sale being $3,000, leaving a deficiency of $2,464.93. Thereupon, and within the time limited by the statute of 1880, the present suit was brought to recover that deficiency.
The respondent set up, as a partial defense, that in June, 1918, the mortgaged premises were damaged by fire; that they were covered by an insurance policy which was held by Goodell as mortgagee; that the company settled its liability under the policy by paying the mortgagee $1,594, who in turn paid it over to the owner of the property in order to enable him to make repairs; and that...
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