W. Ridgelawn Cemetery v. Jacobs

• Decision Date: 07 February 1930
• Citation: 148 A. 771
• Parties: WEST RIDGELAWN CEMETERY v. JACOBS.
• Court: New Jersey Court of Chancery

148 A. 771

WEST RIDGELAWN CEMETERY

v. JACOBS.

Court of Chancery of New Jersey.

Feb. 7, 1930.

(Syllabus by the Court.)

Suit by the West Ridgelawn Cemetery, a corporation, against William Jacobs. On motion to strike out the bill. Bill dismissed;

Samuel F. Slaff, of Passaic, for complainant.

Samuel Heller, of Passaic, for defendant.

BENTLEY, Vice Chancellor. On motion to strike out the bill.

This bill recites, in effect, that in 1926 the defendant secured a judgment for $475 and costs, and that more than two years thereafter certain lands of the complainant, which was the judgment debtor, were sold under an execution and purchased by the judgment creditor for the sum of $150. It also says that the complainant did not know that the sale was to be held, and, of course, was not represented thereat Two points are made in the bill: One is that the complainant's lands are not subject to sale on execution; the other is that equity should relieve because of the disproportion between the amount bid toy the defendant and the market value of the lands so purchased. The first point has already been decided adversely to the complainant on the return of an order to show cause allowed on the filing of the bill. This is the law of the case and is binding, not only upon the parties, but also upon the court. Black's Law of Jud. Prec. 262.

The bill alleges that the lands in question are worth $24,000. Making due allowance for the opinion thus expressed, there can be no question but that the complainant's case is a hard one, because every indication is that its lands were worth very much more than the amount bid at the sale and much more than the amount of the judgment at law. Recognizing, however, that mere inadequacy is not sufficient to disturb a judicial sale (Hoffman v. Godfrey, 79 N. J. Eq. 617, 82 A. 900), the bill couples therewith the allegation that the execution sale was held more than two years after the defendant secured his judgment in a law court, and it is prayed that, because of this peculiarity, the sale should be set aside upon the complainant doing equity, as it offers to do.

On this motion the complainant relies upon the case of Raphael v. Zehner, 56 N. J. Eq. 836, 42 A. 1015, 1016, and an earlier opinion upon which that decision was based. In the case just named the opinion discloses that delays and accommodations had been given by the judgment creditor, "such as fairly to entitle complainant to notice from this judgment creditor that the sale would be made under execution, if he intended to take that step for the satisfaction of the judgment." The bill under examination presents no such statement of fact. It is a far different situation where a judgment creditor falls to promptly execute his judgment, as in the case at bar, and the situation where he lulls the judgment debtor into a false sense of security by a positive course of action, as in the Raphael Case.

Furthermore, the opinion in that case discloses that there was either a tacit, or an express, understanding that upon receipt of such notice the judgment debtor would bid enough at the sale to satisfy the judgment. Not only does...