Mut. Life Ins. Co. of New York v. Pinner

• Decision Date: 22 July 1887
• Citation: 43 N.J.E. 52,10 A. 184
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. PINNER.
• Court: New Jersey Court of Chancery

10 A. 184

43 N.J.E. 52

MUTUAL LIFE INS. CO. OF NEW YORK

v. PINNER.

Court of Chancery of New Jersey.

July 22, 1887.

(Syllabus by the Court.)

On application to set aside an appearance entered for defendant, and also a decree for deficiency made against him, heard on petition and proofs taken in open court.

John O. H. Pitney, for defendant. E. D. Gillmore and H. 67. Atwater, for complainants.

VAN FLEET, V. C. The defendant applies to have the appearance entered for him in this case set aside, on the ground that it was entered without his knowledge or authority; and he insists that if he succeeds in his application he is entitled, as a necessary consequence of his success on this point, to have the decree for deficiency entered against him also set aside. The latter measure of relief, he claims, is necessary in order fully to redress the wrong which he suffered by the entry of his appearance without his authority. This suit was brought to foreclose a mortgage for $5,000 made by Sarah M. Rose to the complainants on the eleventh day of January, 1871. A deed for the mortgaged premises, containing a covenant by which the defendant assumed the payment of the complainant's mortgage debt, was made to the defendant on the first day of November, 1871. The complainants filed their bill on the third day of June, 1876. The defendant has never been a resident of this state. At the time the mortgaged premises were conveyed to him, as also when this suit was commenced, the defendant was a resident of the state of New York. He was proceeded against as an absent defendant. An order was made on the fifth of July, 1876, requiring him to appearand plead or demur or answer on or before the sixth day of September following. The notice of this order required by the rules was published and mailed in the manner and within the time prescribed by the order. The proceeding against him, as an absent defendant, was in all respects regular. The court, on proof that all the steps necessary, according to the statute, to give it jurisdiction over him, had been regularly taken, made a final decree in the case on the twenty-sixth day of September, 1876, condemning the mortgaged premises to sale for the payment of the complainants' debt, and also adjudging that, in case the proceeds of sale were not sufficient to satisfy and discharge the mortgage debt, the deficiency should be made of the goods and lands of the defendant. An appearance for the defendant was entered on the fifth of September, 1876, by a firm of solicitors who were at that date engaged in practice as copartners. The principal object of the defendant's present application is to have the appearance so entered for him set aside.

More than 10 years have elapsed, it will be observed, since the act was done which the defendant now says was unauthorized. If the defendant is responsible for this delay, there can be no doubt that his laches should defeat his application. If, with full knowledge that the act which he now says was wrongful had been done, he has, for this long period, stood by, neither asking for redress, nor complaining, his conduct would bear but one interpretation, —he did not complain before because he knew he had no cause of complaint, and he only complains now, either because he has forgotten what the facts were, or because he believes the proof of them cannot be made. This, however, is not the fact. The defendant says that he never authorized any one to enter an appearance for him, nor to procure his appearance to be entered for him; and, further, that he never heard that an appearance had been entered for him until January last. The proofs, I think, demonstrate the truth of both branches of this statement. If the first part of this statement— namely, that the defendant never authorized any one to enter an appearance for him—stood on the defendant's evidence alone, I should have serious doubts whether his recollection could, in view of the fact that it is undisputed that another transaction, concerning the mortgaged premises, occurred during the same year in which his appearance was entered, in which he took a very important part, and which was of a character likely to impress itself very strongly upon his memory, has entirely faded from his memory, be regarded as sufficiently strong and clear to justify the court in accepting his statement as satisfactory proof of the fact affirmed. The defendant's appearance, as already stated, was entered September 5, 1876. On the seventeenth of January of the same year he and his wife executed a mortgage on the premises covered by the complainants' mortgage to his brother Moritz Pinner to secure the payment of $2,500. Although this mortgage was signed by the defendant and his wife, and acknowledged in due form by both before a commissioner for New Jersey residing in New York, yet the defendant swears that he has lost all recollection of the occurrence. The transaction was one that was likely to fix itself firmly upon his memory. He was not a dealer in real estate. He had had nothing to do with the purchase of this, had never been in possession of ft, nor exercised any control over it. He was not in the habit of executing mortgages; the one in question being probably the only one he ever gave. It would seem, therefore, to be neither unjust nor unreasonable to believe that if a transaction so exceptional and important in its character as the execution of this mortgage could so completely escape from bis memory, that he had also forgotten a less ceremonious and important transaction occurring in relation to the same property only a few months later. In other words, it would seem to be almost incontestable that, if he had forgotten so important a thing as the execution of the mortgage, he would almost necessarily, in consequence of the same infirmity, also forget so brief and unimportant a transaction as a direction to a solicitor to enter an appearance for him.

But there is other and more satisfactory proof. The defendant's brother Moritz swears that he purchased the mortgaged premises, and paid for them with his own money, and procured the title to be made to the defendant without the...