Wheeler v. Ellis

• Decision Date: 09 November 1893
• Parties: WHEELER v. ELLIS.
• Court: New Jersey Supreme Court

27 A. 911

56 N.J.L. 28

WHEELER

v. ELLIS.

Supreme Court of New Jersey.

Nov. 9, 1893.

(Syllabus by the Court.)

Case certified from circuit court, Monmouth county; Beasley, Judge,

Action by Holmes A. Wheeler against Charles H. Ellis on a bond. On demurrer to defendant's plea the case was certified to the supreme court. Demurrer sustained.

Argued June term, 1893, before MAGIE, GARRISON, and DIXON, JJ.

Fredk. Parker, for plaintiff.

Mr. Coward, for defendant.

DIXON, J. On June 6, 1887, the defendant executed and delivered to the plaintiff his bond for the payment of $1,070.83 to the plaintiff in one year, and a mortgage on two farms in Monmouth county to secure the bond. Both farms were then incumbered by prior mortgages. Subsequently foreclosure proceedings were instituted on these prior mortgages, in which proceedings the plaintiff was made a defendant, and obtained decrees for the amount due him. On November 2, 1889, and January 13, 1890, the farms were sold under executions in the chancery proceedings, but nothing was realized toward payment of the plaintiff's debt In March, 1893, the plaintiff brought this action upon the bond in the Monmouth circuit, and the defendant pleaded the foregoing facts in bar, relying upon "An act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder," approved March 12, 1880, and the amendment thereof, passed March 23, 1881, (Supp. Revision, pp. 489, 490.) The plaintiff demurred to this plea, and thereupon the circuit court certified the case to this court for an advisory opinion on the question whether the act referred to was applicable to the case in hand.

The amended statute provides: "Sec. 2. That in all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be, first, to foreclose the mortgage, and if at the sale of the mortgaged premises under said foreclosure proceedings the said premises shall not sell for a sum sufficient to satisfy said debt interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency, and that all suits on said bond shall be commenced within six months from the date of the sale of said mortgaged premises, and judgment shall be rendered and execution issue only for balance of debt and costs of suit. Sec. 3. That if after the foreclosure and sale of any mortgaged premises the person who is entitled to the debt shall recover a judgment in a suit on said bond for any balance of debt, such recovery shall open the foreclosure and sale of said premises, and the person against whom the judgment has been recovered may redeem the property...