Weiner v. Cullens

• Decision Date: 16 March 1925
• Docket Number: No. 19.,19.
• Citation: 128 A. 176
• Parties: WEINER v. CULLENS et ux.
• Court: New Jersey Supreme Court

128 A. 176

WEINER

v. CULLENS et ux.

No. 19.

Court of Errors and Appeals of New Jersey.

March 16, 1925.

Appeal from Court of Chancery.

Suit to foreclose mortgage by Gertrude R. Weiner against James C. Cullens, Jr., and wife. From decree dismissing complainant's bill, she appeals. Reversed and remanded, with directions.

Patrick H. Harding, of Camden, for appellant.

George H. Jacobs, of Camden, for respondents.

KALISCH, J. The complainant filed her bill of complaint in the Court of Chancery, to foreclose a mortgage made and given by the defendants to the complainant upon property in Oaklyn, Camden county, purchased by the former of the complainant, which mortgage was in the sum of $1,965, and was a second mortgage and payable in installments, covering a period of seven years from October 18, 1922, and was given by defendants to complainant as part of the purchase price for said property.

The gravamen of the bill is that the defendants have failed to comply with the terms of the mortgage as set forth in the bill, in that they had failed to produce receipt for taxes on or before the 1st day of December, 1922, and further that the defendants had failed and neglected to pay all municipal assessments assessed upon the property subject to the mortgage.

The mortgage contained a provision which inter alia, in substance, provided that the defendants shall pay the taxes assessed upon the premises for the first half of every year on or before the 20th day of May therein, and shall produce receipts for taxes for each half of every year on or before the 1st day of June and the 1st day of December, respectively, therein, and shall also pay all other taxes, municipal assessments, or charges in the nature thereof which may be laid or assessed upon the said premises immediately upon their assessment, and that, if at any time default should be made in the payment of any tax or charge as above provided for, then the principal debt and all interest thereon shall become due and payable immediately, enforceable, and recoverable.

From the uncontradicted testimony it appears that there was an assessment of $76.71 levied against the property in question on October 25, 1922. The bill of complaint was filed in March, 1923. No payment was made of the same by the defendants. On August 24, one-fifth of the amount due on the assessment was paid by defendants.

So far as it appears from the testimony, the assessment is still unpaid. There was clear proof of a breach of the condition of the bond and mortgage. This default entitled the complainant to foreclose the mortgage. It is difficult to comprehend upon what theory the complainant's bill was dismissed. No memorandum or opinion was filed in the case by the court below disclosing the reasons for the course pursued. A reading of the testimony makes it clear that the defendants had failed to establish a meritorious defense, and therefore the complainant was entitled to a decree in her favor.

The defendants admitted that there was a curb and gutter assessment levied against the property, as claimed by the complainant, and that the same was not paid when due. They attempt to excuse this default by the plea that they did not become aware of the existence of the assessment until a few months after it was levied, and that when they were made aware of its existence they paid one-fifth of the amount due to the borough and made some arrangements with the municipality to pay the balance in installments. Of course this was neither a legal nor an equitable defense to the foreclosure proceedings.

The agreement between the parties was that the defendants should "pay municipal assessments or charges in the nature thereof which may be laid or assessed upon the said premises immediately upon their assessment," and in default thereof the principal debt remaining due shall become payable immediately.

In Baldwin v. Van Vorst, 10 N. J. Eq....