Sivade v. Smith
| Citation | 146 A. 364 |
| Decision Date | 20 May 1929 |
| Docket Number | No. 36.,36. |
| Parties | SIVADE et ux. v. SMITH et al. |
| Court | New Jersey Supreme Court |
Appeal from Court of Chancery.
Suit by Elie Sivade and wife against Florence H. Smith and others. From an order, complainant appeals. Affirmed.
The order of Vice Chancellor Ingersoll was as follows:
The defendant Florence H. Smith held a second mortgage upon certain premises. She held the bond of the complainant for which said mortgage was given to secure. The first mortgage was foreclosed, and, at the sale resulting therein, it was purchased by Wilbert Beaumont for an amount less than that due upon the first mortgage. Therefore a deficiency arose, and judgment was entered upon the bond of complainant.
In Wheeler v. Ellis, 56 N. J. Law, 28, 27 A 911, it was held that the statute "Act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder." Approved March 12, 1880 (P. L. p. 255), and the amendment thereof passed March 23, 1881 (P. L p. 184); Rev. Supp. 1886, p. 490 et seq. (3 Comp. Stat. 1910, p. 3420) deals only with the bond of the complainant in foreclosure.
The Court of Errors and Appeals in Schmidt v. Frey, 86 N. J. Law, 215, at page 217, 90 A. 1123, 1124, said: "We see no reason to question the soundness of this decision [in Wheeler v. Ellis, 56 N. J. L 28, 27 A. 911]."
The amendment made to the act above referred to, L. 1915, c. 178, p. 339; Cum. Supp. 1924 to Comp. Stat p. 1972, does not affect the question now before us.
The statute not applying to the bond upon which the judgment in question was recovered, the order to show cause must be vacated.
Carlton Godfrey, of Atlantic City, for appellants.
Thompson & Hanstein, of Atlantic City, for respondents.
The order appealed from will be affirmed for the reasons stated in the opinion filed in the court below by Vice Chancellor Ingersoll.
For Affirmance: The CHIEF JUSTICE, Justices TRENOHARD, PARKER, KALISCH, BLACK, CAMPBELL, LLOYD, CASE, and BODINE, and Judges WHITE, VAN BUSKIRK. McGLENNON, KAYS, HETFIELD, and DEAR.
For reversal: None.
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