Vanderhoff v. Wasco
| Court | New Jersey County Court |
| Writing for the Court | BUCHANAN, Vice Chancellor |
| Citation | 158 A. 323 |
| Parties | VANDERHOFF v. WASCO et al. |
| Decision Date | 06 January 1932 |
VANDERHOFF
v.
WASCO et al.
Court of Chancery of New Jersey.
Jan. 6, 1932.
Where the lien of a first mortgage, by reason of failure to comply with statutory requirements, is subordinated to a subsequent mechanic's lien, although still remaining prior to a second mortgage to which the mechanic's lien is subordinate, the mechanic's lien claim is entitled to payment before any payment on the first mortgage.
Two separate suits by Janet I. Vanderhoff against Joseph Wasco and others, consolidated. On exceptions to the master's report.
Decree in accordance with opinion.
J. Conner French, of Trenton, for exceptant.
William Abbotts, Jr., and Albert Cooper, Jr., both of Trenton, opposed.
BUCHANAN, Vice Chancellor.
Two suits have been consolidated. Complainant sues to foreclose two mortgages on respective tracts owned by defendant Wasco. Defendant Samdin Realty Company has a blanket second mortgage covering both tracts; defendant Buonanno claims a mechanic's lien on both; and defendant Tattersall Company claims a judgment lien on both. The dispute is as to the priority of liens.
Wasco purchased the lots from the Samdin Company for $3,000. Between the contract of purchase and the actual conveyance, he commenced the erection of two houses. On June 4, 1928, the lots were conveyed to Wasco, who gave back to the Samdin Company a purchase-money mortgage for the whole $3,000, and the two $4,000 "construction" mortgages held by complainant. By agreement, the latter were recorded first, so as to be first in lien.
$2,150 was advanced to Wasco on account of each of the $4,000 mortgages, but thereof only $1,113.22 was traced into the actual construction of the building on tract No. 1, and $681.43 as to tract No. 2. Interest has, of course, accrued on these sums.
As to tract No. 1 (we need not concern ourselves in detail with tract No. 2, for the principles involved are exactly the same), the master's report finds that the amounts due are as follows:
|
To Complainant, of which only the actual building, |
$1,308.89 went into 1,238.36 did not |
$2,547.25 |
|
To Samdin Co. |
1,777.15 |
|
|
To Buonanno, (lien claim) |
1,133.17 |
|
|
To Tattersall Co. (judgment) |
388.61 |
He also finds that the priorities would be as above mentioned, except for the fact that only part of complainant's advances is proved to have actually gone into the building, and the further fact of the agreement between complainant and the Samdin Company whereby the latter's mortgage was to be subordinate to complainants. He determines that the first of these facts would subordinate the $1,238.36 of complainant's advances (which has not been traced into the building) to the Buonanno lien claim, but that the second of these facts entitles complainant, as between herself and the Samdin Company, to subrogation to the rights of the Samdin Company.
He therefore establishes the priorities as follows:
|
1st Compl't |
$1,308.89 |
|
|
2d Compl't. |
1.238.36 |
|
|
(Out of Samdin Co's $1,777.15) |
||
|
3d Samdin Co |
538.79 |
(balance of the $1,777.15) |
|
4th Buonanno |
1,138.17 |
|
|
6th Samdin Co |
1,238.36 |
(repayment from Compl't.) |
|
6th Tattersall |
398.61 |
The lien claimant Buonanno files exceptions, claiming that his lien should be paid ahead of all the other claims, except only the admitted priority of complainant's $1,308.
Complainant's mortgage was recorded ahead of the Samdin mortgage. This was by
agreement, but, even without such...
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Holly Knitwear, Inc., Matter of
...552 (E. & A.1881); Jarecki v. Manville Bakery, Inc., 7 N.J.Super. 387, 71 A.2d 228 (Ch.Div.1950); Vanderhoff v. Wasco, 109 N.J.Eq. 463, 158 A. 323 (Ch.1932); Fidelity Union Title & Mtg. Guar. Co. v. Magnifico, 106 N.J.Eq. 559, 151 A. 499 (Ch.1930) Page 380 ; Meeker v. Warren, 66 N.J.Eq. 146......
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Cambridge Acceptance Corporation v. American National Motor Inns, Inc Oxford Finance Companies, Inc v. Tamburri, R-W
...upon the limitation on the subordination imposed by the subordinating first Page 205 mortgagee. Vanderhoff v. Wasco, 109 N.J.Eq. 463, 467, 158 A. 323 (Ch.1932). Even were this not so, an implied agreement in the instant case can and, in equity, should be spelled out from First National's ac......
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Cambridge Acceptance Corp. v. Hockstein, No. A--105
...was therefore [246 A.2d 141] so limited by agreement. The case has since been so understood. Vanderhoff v. Wasco, 109 N.J.Eq. 463, 467 158 A. 323 (Ch.1932). Note, 42 Yale L.J., op.cit., supra (at p. 983, n. Notwithstanding all of the foregoing, we nevertheless agree with the holding in the ......
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Rasner v. Carney, No. 252.
...of the debt, and the failure to deny it is, under the principle declared in the case cited, tantamount to an admission of its existence. 158 A. 323 It is lastly contended that the order was without legal justification because the statutory provision only permits the constable to collect on ......
-
Holly Knitwear, Inc., Matter of
...552 (E. & A.1881); Jarecki v. Manville Bakery, Inc., 7 N.J.Super. 387, 71 A.2d 228 (Ch.Div.1950); Vanderhoff v. Wasco, 109 N.J.Eq. 463, 158 A. 323 (Ch.1932); Fidelity Union Title & Mtg. Guar. Co. v. Magnifico, 106 N.J.Eq. 559, 151 A. 499 (Ch.1930) Page 380 ; Meeker v. Warren, 66 N.J.Eq. 146......
-
Cambridge Acceptance Corporation v. American National Motor Inns, Inc Oxford Finance Companies, Inc v. Tamburri, R-W
...upon the limitation on the subordination imposed by the subordinating first Page 205 mortgagee. Vanderhoff v. Wasco, 109 N.J.Eq. 463, 467, 158 A. 323 (Ch.1932). Even were this not so, an implied agreement in the instant case can and, in equity, should be spelled out from First National's ac......
-
Cambridge Acceptance Corp. v. Hockstein, No. A--105
...was therefore [246 A.2d 141] so limited by agreement. The case has since been so understood. Vanderhoff v. Wasco, 109 N.J.Eq. 463, 467 158 A. 323 (Ch.1932). Note, 42 Yale L.J., op.cit., supra (at p. 983, n. Notwithstanding all of the foregoing, we nevertheless agree with the holding in the ......
-
Rasner v. Carney, No. 252.
...of the debt, and the failure to deny it is, under the principle declared in the case cited, tantamount to an admission of its existence. 158 A. 323 It is lastly contended that the order was without legal justification because the statutory provision only permits the constable to collect on ......