Sliker v. Fisher

• Decision Date: 03 May 1889
• Citation: 17 A. 549,45 N.J.E. 132
• Parties: SLIKER et al. v. FISHER.
• Court: New Jersey Supreme Court

17 A. 549

45 N.J.E. 132

SLIKER et al.

v. FISHER.

Prerogative Court of New Jersey.

May 3, 1889.

(Syllabus by the Court.)

Appeal from orphans' court, Warren county.

William H. Morrow, for appellants. Henry S. Harris, for respondent.

VAN FLEET, Vice-Ordinary. This appeal brings up for review the decree made by the orphans' court of the county of Warren in passing and allowing the final account of James Fisher, as assignee of John B. Fisher. Several errors are imputed to the decree. After full consideration, only two of them appear to me to possess sufficient substance to require special mention or discussion.

A part of the lands conveyed to the assignee were subject to mortgages. He sold them, with the consent of the mortgagees, free of the mortgages, and, when the proceeds of sale were received, he applied them, so far as was necessary, to the payment of the mortgages, and in his account prayed allowance for such payments. The appellants excepted to the allowance of these payments. The orphans' court, however, allowed them, and this allowance is one of the errors charged. Two arguments are advanced to show that the decree in this respect is erroneous.

First. It is said that the fact is that the lands were not sold free of the mortgages. The proofs, however, show that they were. The conditions of sale do not say whether they were to be sold subject to or free of the mortgages,—they say nothing on the subject, —but the assignee testified that an announcement was made to bidders that the lands would be sold free of the mortgages, and that the purchasers purchased with that understanding. That being so, the assignee was bound to pay the mortgages, and as the purchase money he received represented the interest of the mortgagees in the lands, as well as that of his assignor, it was right, and not wrong, that he should apply so much of it as was necessary to the payment of the mortgages. A refusal to pay the mortgages after having sold the lands on a representation that they would be conveyed free would have been a fraud on the purchasers.

Second. It is said, if it be true that the lands were sold free of the mortgages, still, as the assignee had no power under his deed to sell anything but his assignor's equity of redemption, and as everything he received, over and above the value of the equity of redemption, represented something belonging to the mortgagees, and not to his assignor, it is obvious that that part of the proceeds of sale which he applied to the payment of the mortgages constituted no part of the assigned estate, and should not, therefore, have been included in his account. The truth of this objection, in both its branches, may be conceded, and yet nothing will be shown which will render it either necessary or proper that the decree under review should be reversed. Take it to be true that the money paid to the mortgagees constituted no part of the assigned estate, and consequently that its receipt and disbursement should not appear in an accounting of the assigned estate, which is strictly accurate, still it is clear, beyond dispute, that their inclusion in the account in this case has done nobody any harm. The appellants have been deprived of nothing, nor have they suffered injury or prejudice of any kind. On the contrary, by the method of accounting which the assignee adopted in this regard, the creditors interested in the estate received much more complete and satisfactory information, respecting the administration of the proceeds of sale of the real estate, than they would have received had the assignee adopted the method of accounting which the appellants say he should have adopted.

The appellants also say that more commissions were allowed to the assignee than should have been allowed. The statute authorizes the orphans' court to allow such commissions to an assignee, on the settlement of his final account, as the court shall consider just and right. Revision, p. 40, § 18. Although the statute does not expressly say so, it manifestly means that the commissions to be allowed shall be such in amount as...