New Home Bldg. & Loan Ass'n v. Wel-Bilt Const. Co.

• Decision Date: 31 December 1925
• Citation: 131 A. 523
• Parties: NEW HOME BUILDING & LOAN ASS'N v. WEL-BILT CONST. CO. et al.
• Court: New Jersey Court of Chancery

131 A. 523

NEW HOME BUILDING & LOAN ASS'N

v. WEL-BILT CONST. CO. et al.

Court of Chancery of New Jersey.

Dec. 31, 1925.

Bill by the New Home Building & Loan Association against the Wel-Bilt Construction Company and others for foreclosure of a mortgage. On petition by the Vreeland-Kearney Lumber Company to open decree, and motion for leave to file supplemental petition. Decree denying permission to file supplemental petition advised.

Frank E. Bradner, of Newark, for Vreeland-Kearney Lumber Co.

Philip J. Schotland, of Newark, for Solomon Berla and Samuel Berla, trading as "Elias Berla."

CHURCH, V. C. The facts in this case are that complainant foreclosed a mortgage on three buildings in the town of Irvington. The buildings were joined together, but were separately incumbered. The bill of complaint sets forth the lien of complainant and the lien of the mortgagees, the third of which are the defendants. An interlocutory decree was entered and the incumbrances proved before the master who found the amount due. Final decree was entered and sale had. After the sale the Vreeland-Kearney Lumber Company filed a petition, asking that the surplus money be held, and claiming priority of an alleged mechanic's lien claim over the lien of the mortgage of these defendants. Vice Chancellor Fielder, to whom this petition was presented, made an order of reference to John A. Bernhard, Esq., to take testimony and report whether, in his opinion, the Vreeland-Kearney Lumber Company could establish a right of claim. Mr. Bernhard reported that, in his opinion, it could not do so. Exceptions were filed, and the Vreeland-Kearney Lumber Company now asks this court to allow them to open the decree and file an answer allowing them to question the mortgage held by the defendant, on the ground that when the corporate debtor executed the mortgage it was insolvent. The corporate debtor is a bankrupt and one Morris Isserman is trustee in bankruptcy of said corporate debtor. The Vreeland-Kearney Lumber Company filed a lien on November 20, 1924, in which they made Mr. Isserman a party defendant, as well as the corporation, and also these defendants. It did not prosecute its lien claim by placing the summons and complaint in the hands of the sheriff, but, instead, presented the summons and complaint to the county clerk, had him indorse on the lien claim the issuance of the summons, and then took no further steps. The summons and complaint were not placed in the hands of the sheriff...