Stoddard v. van Bussum

• Decision Date: 30 March 1898
• Citation: 57 N.J.E. 34,40 A. 29
• Parties: STODDARD v. VAN BUSSUM.
• Court: New Jersey Court of Chancery

40 A. 29

57 N.J.E. 34

STODDARD

v. VAN BUSSUM.

Court of Chancery of New Jersey.

March 30, 1898.

Bill by Alice Jane Stoddard, administratrix de bonis non with the will annexed of Albert R. Terhune, deceased, against John Van Bussum, to revive and enforce a decree for the payment of money. Heard on pleadings and proofs. Decree for plaintiff.

The object of the bill is to revive and enforce a decree for the payment of money. The defense is the statute of limitations. The question is as to the actual date of the decree. The facts are undisputed. In October, 1876, James E. Stoutenburgh, administrator with the will annexed of Albert R. Terhune, filed his bill against the defendant, Van Bussum, and wife, and others, to foreclose a mortgage securing a bond made by Van Bussum to Terhune. Van Bussum was duly served with process, and made no defense. Such proceedings were had in the cause that on the 6th day of March, 1877, a decree was made in the usual form for the foreclosure and sale of the mortgaged premises by execution to raise the amount due the complainant, with the usual directions to the sheriff to make return to the writ. To this complete decree of foreclosure and sale the following clause was added: "And, in case the proceeds of such sale shall be insufficient to satisfy and discharge the said mortgage debt, then it is hereby further ordered, adjudged, and decreed that said deficiency shall be made of the lands and tenements, goods and chattels, of the said defendant, John Van Bussum, as specifically prayed in the bill of complaint filed in this cause; it appearing to the court that notice that such relief was sought by said bill has been duly served and given to said defendant according to law and rules of practice of this court, and that a writ of fieri facias therefore do issue accordingly out of this court against said defendant for that purpose, payment of the said deficiency being hereby decreed to be made by the said defendant, and that the sheriff make return to this court of his proceedings by virtue of the said writ." An execution for the sale of the mortgaged premises was duly issued, which was originally tested in March, with a blank for the date, in which the word "March" is erased and the word "May" is interlined, and the date "seventh" written in its proper place, not in the handwriting of Mr. Stoutenburgh, who prepared the writ,—returnable on the third Tuesday of May instant. Why its issue was delayed from March to May does not appear. By virtue of that writ the sheriff of Bergen county, on the 19th of September, 1877, sold the mortgaged premises for the sum of $5,955, and by his statement annexed to the writ showed a deficiency of $10,633.03 to satisfy the amount of the decree. The return made by the sheriff does not show when the writ was actually returned, nor is the date of its filing marked upon it. But on the Kith of October—the word "October" being written (not in the handwriting of the solicitor over the erasure of the word "September"— the chancellor made an order reciting the previous decree fixing the liability of the defendant to pay the deficiency, and the issuance of execution, and the return of the sheriff showing the deficiency above mentioned, directing that a writ of fieri facias issue pursuant to said final decree to levy and make said deficiency, to wit, the sum of $10,633.03, together with interest from the 19th of September, of the goods and lands of the said John Van Bussum, together with the costs of the order and writ. Under that order an execution was issued against Van Bussum, which produced no results. An abstract of the order of October 16th was duly docketed in the supreme court on the 17th of October. Stoutenburgh died on the 6th of March, 1891. Letters of administration de bonis non c. t. a. upon the estate of Terhune were duly issued to the complainant on the 17th of May, 1897, and the bill herein was filed on the 23d of August, 1897, more than 20 years after the date of the original decree of foreclosure fixing the liability of Van Bussum to pay the deficiency, but less than 20 years since the actual sale of the premises and the order for fieri facias. Nothing has ever been paid on account of the amount so found to be due.

John B. Humphreys, for complainant.

John Griffin, for defendant,

PITNEY, V. C. (after stating the facts).

The question raised on the case-made is somewhat nice, and its solution depends in part upon the construction of certain statutes which I will state. The fourteenth section of the limitation act (2 Gen. St. p. 1975) provides as follows: "That judgments in any court of record in this state may be revived by scire facias, or any action of debt may be brought thereon within twenty years next after the date of such judgment and not after." The fifty-sixth section of the chancery act (1 Gen. St. p. 382) provides as follows: "That the decree of the court of chancery shall, from the time of its being signed, have the force, operation and effect of a judgment at law in the supreme court from the time of the actual entry of such judgment; and all decrees and orders of the court of chancery whereby any sum of money shall be ordered to be paid by one person to another shall have the force, operation and effect of a judgment at law in the supreme court from the time of the actual entry of such judgment, and the chancellor may order such executions thereon as in other cases." Then follows a provision that it shall not become a lien upon and bind any lands other than those mentioned in the decree until an abstract is filed in the supreme court. The seventy-sixth section of the chancery act (1 Gen. St. p. 380) provides as follows: "That it shall be lawful for the chancellor in any suit for the foreclosure or sale of mortgaged premises to decree the payment of any excess of the mortgage debt, above the net proceeds of the sales, by any of the parties to such suit who may be liable, either at law or in equity, for the payment of the same; provided that there be a prayer to that effect in the bill of complaint." Section 110 of the chancery act (1 Gen. St p. 394) provides as follows: "That execution may issue, without a revival of the decree, at any time within twenty years from the date of such decree: provided, the parties to the decree, or those of them during whose lives execution may now issue without a revival, be then living," etc. So far as the fourteenth section of the limitation act bears upon the question to be dealt with, it acts only by analogy. The only difference between that section and the 110th section of the chancery act is that the latter does not, by express language, forbid the issuing of execution after 20 years from the date of the decree; but the force and...