Tr.s For Support Of Pub. Sch. v. Ott & Brewer Co.

• Decision Date: 08 June 1944
• Docket Number: 16/603.
• Parties: TRUSTEES FOR SUPPORT OF PUBLIC SCHOOLS v. OTT & BREWER CO. et al.
• Court: New Jersey Court of Chancery

37 A.2d 832

TRUSTEES FOR SUPPORT OF PUBLIC SCHOOLS

v.OTT & BREWER CO. et al.

16/603.

Court of Chancery of New Jersey.

June 8, 1944.

Bill by the Trustees for the Support of Public Schools against the Ott & Brewer Company and others to foreclose a mortgage, wherein a decree of foreclosure was entered, the issuance of a fieri facias directing sale of the premises was authorized, but the premises were never sold and the writ was never returned. On complainant's petition to obtain a special order for the issuance of an alias writ.

Order advised authorizing issuance of the alias writ.

1. It is the universally accepted rule that the government is not included in a general statute of limitation unless the legislative intention to do so is plainly expressed or necessarily implied.

2. Although the state is not the complainant eo nomine in a suit prosecuted by the Trustees for the Support of Public Schools to recover a loan made from the perpetual school fund, the state is in reality the party in interest. The title of the fund is vested in the state in its sovereign capacity for a public purpose of the most conspicuous type.

Walter D. Van Riper, Atty. Gen., and Sackett M. Dickinson, Asst. Atty. Gen., for petitioner.

John J. Connell, of Trenton, for City of Trenton.

JAYNE, Vice Chancellor.

The present verified petition discloses that on February 21, 1893, the Trustees for the Support of Public Schools filed a bill to foreclose a mortgage executed and delivered to the Trustees by the Etruria Pottery Company dated May 24, 1880, encumbering certain real estate in the City of Trenton to secure the repayment of a loan of $20,000. A final decree made on May 29, 1893, adjudged the mortgage debt due the complainant to be $21,836.65 with interest computed from May 20, 1893; authorized the issuance of a fieri facias directing the sheriff to sell the premises to raise and satisfy the debt due to the complainant, with interest and costs; and decreed that the defendants stand debarred and foreclosed of and from all equity of redemption in the mortgaged premises when sold. The mortgaged premises were not sold, the writ was never returned and has long since disappeared. The complainant employs the present petition to obtain a special order for the issuance of an alias writ in pursuance of which the mortgaged premises may now be sold to pay the principal and interest at present due and owing.

Additionally it is revealed that since the entry of the decree the mortgaged premises have been conveyed at intervals to successive purchasers always subject to the complainant's decree. One of the owners of the premises, The Cook China Company, was adjudged insolvent and a receiver appointed by this court was empowered to convey the premises to Lenape Land Company subject to the complainant's lien. That deed is dated February 28, 1930. The Lenape Land Company paid to complainant all accrued interest due on the date of the conveyance, and thereafter interest was paid on the debt up to August 1, 1932. See Hudson Trust Co. v. Boyd, 80 N.J.Eq. 267, 84 A. 715; Colonial B.-L. Ass'n v. Mongiello Bros., Inc., 120 N.J.Eq. 270, 184 A. 635. On January 26, 1939, the premises were exposed to sale for delinquent taxes and struck off to the City of Trenton.

Notice of the present application was given those having any interest or estate in the premises, and the City of Trenton was the only party to appear. Counsel for the City impugns the power of this court to now order the issuance of an alias writ. Attention is attracted to the following provisions of our statutory law:

R. S. 2:24-6, N.J.S.A. 2:24-6. ‘A judgment in any court of record in this state may be revived by scire facias or an action at law may be brought thereon within twnety years next after the date thereof. The time during which the person entitled to the benefit of the judgment shall have been under the age of twenty-one years or insane shall not be computed as a part of such twenty years.’

R. S. 2:29-57, N.J.S.A. 2:29-57. ‘A 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 for the payment of money by one person to another shall have a like effect, and the chancellor may order execution thereon as in other cases, subject, however, to the provisions of section 2:29-58 of this title.’

R.S. 2:29-70, N.J.S.A. 2:29-70. ‘Execution may issue without a revival of the decree, at any time within twenty years from the date thereof, if the parties thereto, or such of them during whose lives execution could issue without a revival, be then living; but if more than six years have elapsed since the entering of the decree, a special order of the court shall be necessary before the execution issue, which order shall be made upon ten days' notice to the defendant of the application therefor, and proof to the satisfaction of the court of the amount remaining due upon the decree.’

In Stoddard v. Van Bussum, 57 N.J.Eq. 34, at page 37, 40 A. 29, 30, Vice Chancellor Pitney in construing those statutes, stated:

‘So far as the fourteenth section of the limitation act [now R.S. 2:24-6, N.J.S.A. 2:24-6] 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 [N.J.S.A. 2:29-70] is that the latter does not, by express language, forbid the issuing of execution after twenty years from the date of...