Ventnor City Nat. Bank v. Troy Corp.

• Decision Date: 09 December 1929
• Parties: VENTNOR CITY NAT. BANK v. TROY CORPORATION et al.
• Court: New Jersey Court of Chancery

147 A. 862

VENTNOR CITY NAT. BANK

v. TROY CORPORATION et al.

Court of Chancery of New Jersey.

Dec. 9, 1929.

(Syllabus by the Court.)

Mortgage foreclosure suit by the Ventnor City National Bank against the Troy Corporation and others. On order to show cause why premises described in the mortgage should, not be sold in parcels and not as a whole. Decree in accordance with opinion.

John Westcott, of Atlantic City, for complainant.

S. Paul Ridgway and Emerson Richards, both of Atlantic City, for defendant Ridgway.

INGERSOLL, Vice Chancellor. The complainant's decree in foreclosure directed the sheriff to sell the lands described, in the mortgage, to raise the amount of the decree. Prior to the foreclosure, a portion of the mortgaged property was sold and conveyed to the Troy Corporation, a party defendant.

The hearing is upon an order to show cause "why said premises described in complainant's mortgage, should not be sold in parcels and not as a whole, and why the premises now owned by the petitioner and the premises now owned by the Troy Corporation should not be sold separately."

The complainant resists the application upon two grounds: First, that the petitioner is not entitled to the relief prayed for because it is a creature of the mortgage. This is insufficient to deny the relief. Others are stockholders in the company. Second, that the complainant is unable to determine the value of the respective portions of the mortgaged premises, and that the land is of greater value if sold as one tract, and affidavits are presented that for the proper development of the land it should be sold as an entirety, and that by selling it in two tracts it would materially destroy the value of the land.

This case is not within the rule laid down by Chancellor Williamson in Parkhurst v. Cory, 11 N. J. Eq. 233, in which it was held; "There are cases where the court, by virtue of the statute, may make a decree to sell the whole mortgaged premises, even where the whole sum secured by the mortgage is not due—as when it shall appear to the court that a part of the premises cannot be sold to satisfy the amount due without material injury to the remaining part of the mortgaged premises—the execution then commands the sheriff to sell the whole of the premises. * * * "

The law applicable here was laid down by Chancellor Vroom, at the October term, 1831. to be:

"Where a man gives a mortgage upon his property, and after having done so sells a part of it to a third person for a valuable consideration, justice demands that the residue of the mortgaged premises, in the hands of...