Swinley v. Force

• Decision Date: 16 November 1910
• Citation: 78 A. 249,78 N.J.E. 52
• Parties: SWINLEY v. FORCE et al.
• Court: New Jersey Court of Chancery

78 A. 249

78 N.J.E. 52

SWINLEY

v. FORCE et al.

Court of Chancery of New Jersey.

Nov. 16, 1910.

Suit by Robert Swinley against Harriet Force and others to foreclose a mortgage. On demurrer to bill interposed by certain of the defendants. Demurrer sustained.

Traphagen & Beekman, for demurrants.

George S. Hilton, opposed.

STEVENSON, V. C. The bill is filed to foreclose a mortgage executed on June 23, 1876, by Eunice Force and Munson Force, her husband, to George Beesley, to secure the payment of $1,300 and interest, payable semiannually at 7 per cent. per annum; the principal being payable one year after date. There is no allegation that any interest on this mortgage was ever paid by any one. The bill alleges that the entire amount of principal is due, and interest thereon, from June 23, 1880. The demurrer is filed by the defendants Harriet Force, the owner of an undivided one-third of the land covered by the mortgage, and Hallie Spear, Hattie Kent, and John Kent, her husband, the owners of another undivided one-third of said premises.

1. Although the introductory part of the demurrer is inartificially drawn, I think the view of counsel for the complainant is correct that the demurrer must be regarded as a joint demurrer to the whole bill. If, therefore, it appears, taking the well-pleaded allegations of the bill to be true, that the complainant is entitled to foreclose his mortgage upon any interest of the demurring defendants, or any of them, in the land covered by the mortgage or any part thereof, the demurrer must be overruled.

The demurrer specifies as a "cause of demurrer" that the mortgage in question was made "over 32 years ago; that no interest has been paid thereon since June 23, 1880, a period of over 28 years," and that therefore the defendants insist "that said bond and mortgage have become extinct." The demurrer elsewhere specifics that at the time when the complainant took his first assignment of the mortgage, viz., on May 1, 1902, the mortgage "had lapsed and become extinct; no interest having been paid on the same for over 22 years."

Counsel for the complainant argues that the statute of limitations is not specified as a defense in the demurrer, pointing out that the statute merely bars the remedy, and that therefore there is no force in the allegation that the bond and mortgage are extinct. This objection, I think, is hypercritical and without merit The object of specifications of causes of demurrer is to notify the complainant of the points raised against the case made out by the bill, and the test of the sufficiency of these specifications is found in the question whether they exhibit the objections to the bill which were intended to be presented to the court for argument by the demurrer. I think it is plain that, taking these specifications as a whole, they clearly and unmistakably notify the complainant that it is the lapse of time since the bond and mortgage came due, or since the last payment of interest alleged by the bill to have been made thereon, that is to be set up in bar of the complainant's right to a foreclosure. The notice contained in the demurrer did not mislead the complainant but was well understood by his counsel, and both parties came prepared to argue, and have argued, the question whether or not this ancient right of foreclosure, which accrued nearly 32 years before this suit was commenced, appears from the allegations of the bill to be barred by lapse of time.

If the views hereinafter expressed are correct, the important question raised by the bill has little if any relation to the statute of limitations even by way of analogy, and is most distinctly and accurately presented for argument by the specific charge made in the demurrer that the mortgage has "become extinct." A mortgage is certainly extinct whether the debt secured thereby is paid in cash, or is presumed in law to have been paid by reason of the lapse of time and nonpayment of interest.

2. The further objection on behalf of the complainant that the demurrer of these defendants should be overruled because the bill shows that the complainant is entitled to foreclose his mortgage upon the estate in the mortgaged land of other defendants who together own an undivided one-third, and who have interposed no defense, is invalid. The object of a demurrer is to obtain a decree dismissing the bill only as to the demurring defendants.

The matter therefore to be considered is whether the bill exhibits a right of foreclosure in the complainant against the demurrants, or any or either of them. My conclusion is that the demurrer should be sustained.

3. The following is the case made out by the bill to which these defendants interpose their demurrer: The indebtedness secured by the bond and mortgage was the indebtedness of Eunice Force and Munson Force, her husband. The mortgage covered the homestead where the mortgagors resided and which belonged to Eunice and another tract of land which belonged to Munson. Munson Force died intestate on July 10, 1877, 17 days after the bond and mortgage came due, and there is no allegation that he ever paid any part of the principal or interest alleged to have been secured thereby, or in any way acknowledged the validity of either of these obligations, after he had executed them in June, 1876.

On June 24, 1879, the mortgagee Beesley assigned the bond and mortgage to Columbus Force, a son of Munson and Eunice Force. Columbus Force held the bond and mortgage for 15 1/2 years, until his death on January 10, 1895. There is no allegation that any part of the principal or interest was paid to Columbus Force, or that his mother, Eunice Force, who was the owner of one of the tracts, or his brother and sisters, who with him owned as heirs of Munson Force the other tract, ever in any way acknowledged the existence of the bond and mortgage, or of the indebtedness originally secured thereby. At the death of Columbus Force the bond and mortgage were nearly 17 1/2 years overdue.

The statement and admission in the bill that the interest was unpaid from June 23, 1880, neither contains a sufficient allegation that the interest had been paid for any part of the period prior to that date, nor indicates when any payment of interest upon the mortgage from its date was in fact made, assuming that the bill supports the surmise that the interest had been paid somehow, at some time, from the date of the mortgage until June 23, 1880. If, contrary to a well-settled rule of pleading, it must be inferred that the interest on this bond and mortgage were paid up to June 23, 1880, such payment might have been made the day after the mortgage was executed, or on the day when it fell due. When, in a case like this, the complainant foreclosing a mortgage undertakes to get the benefit of a payment of interest as an acknowledgment of the mortgage debt, or as a bar to the claim of adverse possession, the important fact to be disclosed is the date when the payment was made—the date when the acknowledgment of the debt or recognition of the mortgagee's estate was made. I do not think, however, that for the purposes of this ease it makes any difference if we assume, in accordance with the apparent admission of the demurrer, that on or before June 23, 1880, the interest up to that date was paid.

When Columbus Force died on January 10, 1895, his mother, Eunice Force, apparently remained the owner of the homestead tract, while since the death of Munson Force on July 10, 1877, the equity of redemption in the other tract apparently had been vested in his three children, the said Columbus Force, Mary L. Force (or Spear), and Harriet Force, subject to the right of dower of the widow, Eunice Force.

On January 25, 1895, Eunice Force died intestate, leaving as her heirs at law her children, Mary L. Force (Spear), Harriet Force, and her grandchildren Ella E. Force, Munson Force, 2d, Emma Van Voorhies, wife of Joseph Van Voorhies, and John Force, children of Columbus Force, deceased. Thus it came about that 15 days after the death of Columbus Force the equity of redemption in both tracts became vested in the two children (Mary L. Spear and Harriet Force) of Munson and Eunice Force, each holding an undivided one-third, and Ella E. Force, Munson Force, 2d, Emma Van Voorhies, and John Force, the children of Columbus Force, deceased, each of whom held an undivided one-twelfth, subject to the dower right of their mother, Sarah A. Force, the widow of Columbus Force, deceased, in one of these tracts. This was the apparent situation at the time of the death of Eunice Force on January 25, 1895, when it seems to have been supposed that Columbus Force died intestate. The will of Columbus Force proved 13 years later will be subsequently referred to.

Prior to May 1, 1902, Emma Van Voorhies and Ella E. Force both died intestate, not having had issue, and in that manner it came about that on the lastmentioned date Munson Force, 2d, and John Force were the owners of an undivided one-third interest in the mortgaged premises; the husband of Emma Van Voorhies not being entitled to any courtesy. On May 1, 1902, therefore, the interests of the owners of the mortgaged premises stood as follows: Mary L. Spear, one-third; Harriet Force, one-third; Munson Force, 2d, one-sixth; John Force, one-sixth; the interests of Munson and John being subject to the dower right of their mother in an undivided one-third of the second tract originally owned by the first Munson Force.

In this situation of affairs on May 1, 1902, nearly 25 years after the mortgage came due, and nearly 22 years after the date up to which we may infer or surmise from the allegations of the bill and demurrer that interest at some time, and in some manner, was paid on the mortgage, the complainant took an assignment of the bond and mortgage from Munson Force, 2d, John Force, and Sarah A. Force, the widow of Columbus Force, "in and for the payment of a certain part" of a debt due to ...