Rutherford Land & Improvement Co. v. Sanntrock

• Decision Date: 18 June 1900
• Citation: 46 A. 648,60 N.J.E. 471
• Parties: RUTHERFORD LAND & IMPROVEMENT CO. v. SANNTROCK.
• Court: New Jersey Supreme Court

46 A. 648

60 N.J.E. 471

RUTHERFORD LAND & IMPROVEMENT CO.

v. SANNTROCK.

Court of Errors and Appeals of New Jersey.

June 18, 1900.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by the Rutherford Land & Improvement Company against Frederick Sanntrock. Decree advised for plaintiff (44 Atl. 938), and defendant appeals. Affirmed.

John I. Weller, for appellant. Albert I. Drayton and Joseph F. Randolph, for respondent.

COLLINS, J.In affirming this decree, we must disclaim concurrence in the opinion of the learned vice chancellor thatif the mortgage to the Mutual Life Insurance Company, on which respondent's title rests, had been given directly by Mrs. Mohn, the surviving executrix and trustee of Arnold Mohn, instead of by her grantee, the infirmity of whose title was unknown to the company, it would have been perfectly good. This dictum of an experienced judge should not be passed sub silentio. It is based upon the idea that a general power to "dispose of" lands includes a power to mortgage. I find no decision to that effect. In the United States supreme court a majority of the judges were of opinion that, in the phrase "sold or disposed of," the disjunctive words ought not be considered as merely superfluous, and therefore that lands mortgaged had been "disposed of," but Mr. Justice Bradley, for himself and other judges, vigorously dissented; and the very ground of decision excludes the idea of the vice chancellor, if the words stand alone. A dictum in a Pennsylvania case has a like basis. Gordon v. Preston, 1 Watts, 385. But in that state there still obtained the early English rule, long since modified, that a general power of sale includes a power to mortgage. Lancaster v. Dolan, 1 Rawle, 141. If there are other adjudged cases on the subject, they will be found to be peculiar in their circumstances, and dependent on the context of the words construed. To "dispose of" imports finality, and only where a power to sell would include a power to mortgage would those words, unmodified or undefined, imply such a power. In this state a general power of sale does not authorize a mortgage. Ferry v. Laible, 31 N. J. Eq. 566. The modification by this court of the decree advised by Vice Chancellor Van Fleet in that case was not upon that point. Id., 32 N. J. Eq. 791. A power to sell may include a power to mortgage, but only because of some exceptional reason generally, where there is a particular charge to which the devise is subject, and it is...