Mut. Life Ins. Co. of N.Y. v. Newton

• Decision Date: 06 July 1888
• Citation: 14 A. 756,50 N.J.L. 671
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. NEWTON.
• Court: New Jersey Supreme Court

14 A. 756

50 N.J.L. 671

MUTUAL LIFE INS. CO. OF NEW YORK

v. NEWTON.

Supreme Court of New Jersey.

July 6, 1888.

(Syllabus by the Court.)

On motion to strike out plea.

The declaration is upon a bond for $8,000 made by the defendant to the plaintiffs. It states that this bond was accompanied by a mortgage made by the defendant, upon certain lands of his, to the plaintiffs, to secure the sum mentioned in said bond; that, upon the foreclosure of this mortgage, a sum was realized which was applied to the payment of the said $8,000, leaving a balance of $3,877.53 still due. The defendant filed a plea setting up that the sum of $3,877.53 is the amount of a deficiency declared and decreed by the court of chancery as still due and owing upon the proceeding in foreclosure set forth on the declaration; that the bond sued on is the bond which accompanied the mortgage, and was set forth in the bill of complaint to foreclose the said mortgage; that after such decree of foreclosure was made and entered in the court of chancery, and after the sale of the lands, there remained the said deficiency of $3,877.53, which was decreed by the court of chancery to be still due; that on the 15th day of August, 1881, a statement or abstract of such decree was filed in the office of the clerk of the supreme court, whereby the said sum became a judgment of this court, and is still a judgment.

Argued before SCUDDER and HEED, JJ.

E. D. Gillmore, for the motion. G. R. Lindsay, contra.

REED, J., (after stating the facts as above.) The motion to strike out the plea raises the question whether a party who has taken a personal decree in equity for a deficiency in the amount raised on the foreclosure of a mortgage can afterwards bring an action at law upon the accompanying bond. The view of the pleader was that the recovery by way of a decree under the statute was a bar against any other action upon the original cause of action. The notion of the plaintiff's counsel is that a decree is not a judgment in a sense that implies a merger of the original cause of action, and that, therefore, the bond is still suable. The point made is that no action will lie on a decree, as it will upon a judgment, and therefore a decree has not the qualities of a judgment in respect to its effect in extinguishment of the original ground of the suit. In support of the position that no action at law will lie upon a decree in equity, reliance is placed upon the decision of this court made in the case of Van Buskirk v. Mulock, 18 N. J. Law, 184. The facts in that case, which drew forth the decision, were these: An action of debt had been brought to recover the amounts of several decrees of the vice-chancellor of the First circuit of the state of New York. The decrees were interlocutory, and were made in the course of a suit for divorce. One of the decrees was that the defendant should pay the plaintiff $50; another, that he should pay $150 immediately, and $35 monthly until the further order of the court; and still another, that he should pay the costs, taxed at $638.40. There was a count in the declaration upon each of these decrees. A verdict was rendered at the trial, by the direction of the trial justice, in favor of the plaintiff, subject to the opinion of the supreme court. In his opinion delivered when the case came into the supreme court, Chief Justice HORNBLOWER held that no action at law would lie upon a decree in equity for the payment of a sum of money. The counsel for plaintiffs contend that, if it be admitted that no action at law will lie upon a decree in equity, the conclusion must follow that it is not a judgment which merges, or which can be pleaded in bar of an action upon the original cause of action. Without at present admitting the soundness of the conclusion so drawn from the above premises, some observations may be made upon the decision of the court arrived at in the case of Van Buskirk v. Mulock. The chief justice, in his opinion in that case, while deciding that no action at law would lie on a decree of the court of chancery, admitted that the law was at that time settled adversely to his view in the courts of New York and Massachusetts. His conclusion was rested upon what he regarded as the rule settled in the English courts and in the federal court. In respect to the rule at common law, the chief justice relied upon the case of Carpenter v. Thornton, 3 Barn. & Aid. 52, in which it was held that an action would not lie upon a decree for a specific sum of money founded on equitable considerations only. The subsequent case of Henley v. Soper, 8 Barn. & C. 16, which had then been decided 12 years, was obviously overlooked. In that case it had been held that an action would lie upon a decree of a colonial court fixing a balance between partners, and Carpenter v. Thornton was distinguished. Afterwards, in the case of Russell v. Smyth, 9 Mees. & W. 810, the court of exchequer held that an action of assumpsit or debt might be maintained against a party for costs awarded against him by a decree of the court of sessions in Scotland in a suit for divorce. In Henderson v. Henderson, 6 Adol. & E. (N. S.) 295, it was held that a plea to an action upon a decree that the decree was made in respect to matters of trust and executorship account, not cognizable in a court of law, was not a good plea. Lord DENMAN, in his opinion in this case, approved of the decision in the preceding ease decided in the court of exchequer; and said that he agreed with the opinion of Lord ELLENBOROUGH in the case of Sadler v. Robins, 1 Camp. 253, in which opinion Lord ELLENBOROUGH remarked that, "had the decree then under consideration been perfected, I would have given effect to it as well as to a judgment at common law. One may be the consideration for an assumpsit equally with the other." The law in England may be regarded as settled that upon foreign decrees an action at law will lie. And it was substantially settled in the same way, at the time when Van Buskirk v. Mulock was decided, by the cases of Sadler v. Robins and Henley v. Soper, supra. The right to bring actions upon domestic decrees the English courts had denied; but this denial is put upon the ground that such actions were unnecessary, because the court which made the decree could, within its own jurisdiction, enforce it, and so an action was unnecessary. The chief justice, in Van Buskirk v. Mulock, relied upon the case of Hugh v. Higgs, 8 Wheat. 697, as establishing the law in the federal courts against an action at law on a decree. Whatever force this case may have had once is now entirely dissipated by the case of Pennington v. Gibson, 16 How. 65, in his opinion in which case Mr. Justice DANIEL remarked: "We lay it down as the general rule that, in every instance in which an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity for an ascertained and specific amount, and nothing more." This doctrine is approved in the subsequent case of Nations v. Johnson, 24 How. 203. It may be generally remarked of the position of the courts in this country upon...