Spear v. Locust Wood Cemetery Company

• Citation: 66 A. 1068,72 N.J.Eq. 821
• Decision Date: 19 April 1907
• Court: New Jersey Court of Chancery
• Parties: CHARLES C. SPEAR v. LOCUST WOOD CEMETERY COMPANY et al

66 A. 1068

72 N.J.E. 821

SPEAR

v. LOCUST WOOD CEMETERY CO. et al.

Court of Chancery of New Jersey.

April 22, 1907.

Suit by Charles C. Spear against the Locust Wood Cemetery Company and others to foreclose a purchase-money mortgage.Decree rendered.

The bill seeks to foreclose a purchase-money mortgage made November 17, 1902, by the Locust Wood Cemetery Company to complainant.The defense is made by the provisions of section 8 of the cemetery act of 1875(Revision, p. 102;Gen. St.p. 350, § 8) that the cemetery lands covered by the mortgage cannot be sold to satisfy the mortgage debt.

French & Richards, for complainant.John F. Harned, for defendants.

LEAMING, V. C.DefendantLocust Wood Cemetery Company was incorporated April 29, 1902, under the general corporation act.The object for which the corporation was formed is defined in its certificate of incorporation as "to maintain cemetery or cemeteries."November 17, 1902, complainant conveyed to defendantLocust Wood Cemetery Company the tract of land now in question, and at the same time that company executed to complainant a purchase-money mortgage on the land conveyed to secure the payment of a bond given by the company for a part of the purchase price.DefendantLocust Wood Cemetery Company brought into use as a cemetery a portion of the mortgaged premises and operated as a cemetery company until November 17, 1904, when 125 acres of the mortgaged premises, including the part in use as a cemetery, was conveyed by it to defendantLocust Wood Cemetery Association, the latter corporation having been formed under the cemetery act of 1875(Revision, p. 100;Gen. St.p. 349) for the purpose of taking over that portion of the land.The present foreclosure of the mortgage is resisted as to the 125 acres conveyed to the latter company under the claim that the statute exempts the land from sale.

Section 8 of the act of April 8, 1875(Revision, p. 102;Gen. St.p. 350, § 8), exempts from sale under execution "the cemetery lands and property" of any association formed pursuant to that act, "or otherwise incorporated."This section is substantially the same as section 10 of the act of March 14, 1851(P. L.1851, p. 257).As is suggested in Rosedale Cemetery Association v. Linden Township(N. J. Sup.)63 Atl. 904, the purpose of this legislation is the protection and preservation of the places where the dead are buried.

The contention is made on behalf of complainant that the present mortgage, as a purchase-money mortgage, will be protected from the operation of the section.This contention cannot prevail.If complainant could be said to occupy the position of one who had taken a mortgage on lands not devoted to use as a cemetery, I entertain no doubt that the subsequent dedication of the land to cemetery purposes, without the consent of the mortgagee, could not, under our Constitution, operate to impair the mortgage security.But it is impossible to give to complainant the benefit of that status.The evidence disclosed that the cemetery company tentatively arranged with complainant's attorney in fact for the purchase of this land for use as a cemetery several months prior to the sale, and that company was permitted by complainant's attorney in fact (who afterwards conveyed the land for complainant) to take possession and lay out a portion of the land into cemetery lots as early as August, 1902, and during that time the attorney in fact referred to was a member of the cemetery company.It is entirely clear that the sale of the land was made by complainant, through the attorney in fact, to the cemetery company, with full knowledge that it was for use as a cemetery, and the mortgage must be regarded as having been accepted by complainant with a full knowledge of and acquiescence in the proposed use of the land.Under these circumstances the rights of the mortgagee cannot properly be considered as free from the burden imposed by the statute.

The contention is also made that the provisions of section 8, above referred to, are superseded by an act of March 14, 1879(P. L.1879, p. 318;Gen. St.p. 360, § 56).The act of 1879 is a supplement to the act of 1851, above referred to, and amends section 10 of that act.The act of...