Opinion
06-19-1923
CHATSWORTH ESTATES CO. (of New Jersey) v. CHATSWORTH ESTATES CO. (of New York) et al.
F. W. Hastings, Jr., of Jersey City, for William J. Davis. Pinty, Harding & Skinner and Edw. O. Stanley, all of Newark, for defendant.
Bill by the Chatsworth Estates Company, a New Jersey corporation, against the Chatsworth Estates Company, a New York corporation, and others to foreclose a mortgage. Decree for complainant.
Robert McLeod Jackson and George Whitefield Betts, Jr., both of New York City, for complainant,
F. W. Hastings, Jr., of Jersey City, for William J. Davis.
Pinty, Harding & Skinner and Edw. O. Stanley, all of Newark, for defendant.
CHURCH, V. C. This is a bill to foreclose a mortgage. On April 29, 1910, the defendant Chatsworth Company, a New York corporation, executed a bond and purchase-money mortgage to the complainant, Chatsworth Estates Company, a New Jersey corporation. Bond and mortgage were to secure the payment of $55,000 on a tract of land in Burlington county, N. J., consisting of about 5,280 acres.
By stipulation between the parties it appears that the amount due on the said mortgage is $51,462.48. On November 3, 1915, an agreement, called the Wright Johnson agreement, was executed between the complainant and Wright Johnson, and by mesne conveyance came into the possession of the Chatsworth Estates Company of New York. In October, 1916, a large club house, a substantial feature of the mortgaged premises, was completely destroyed by fire, and the insurance money received, amounting to about $18,000, was applied on account of the principal sum due on the said mortgage.
The counterclaim of the defendant Chatsworth Estates Company of New York is in effect, first, that there was a breach of the Wright Johnson agreement in not bringing on the present foreclosure more promptly. Without in detail analyzing the testimony, I think that there is enough in the case to satisfy me that the delay was not due to the fault of the complainant. The failure to foreclose seems to have been by mutual consent. The second point made in the counterclaim is that there was a breach of the mortgage sued on in failing to give release thereunder.
I think that, where the mortgagor is in default, there can be no obligation on the mortgagee to release any part of the mortgaged tract. In specific performance the complainant must have performed, or state that he is ready and willing to perform, his obligations under the contract, before he is entitled to any relief.. Long v. Hartwell, 34 N. J. Law, 116; Merritt v. Brown, 21 N. J. Eq. 401. It appears, moreover, that there was no consideration for the alleged agreement of the complainant to release the 1,800 acres specified in the Wright Johnson agreement. Assuming, however, that the Wright Johnson agreement is still in effect, I do not think that thedefendants have proved any specific damages. Their damages are based very largely upon supposition.
At the conclusion of the case I said I would consider whether I would not stay the foreclosure proceedings until legal damages, if any, could be proved in a court of law. After hearing the entire case, I am satisfied that there can be no specific damages proved. I shall therefore adjudge that the complainant is free from the Wright Johnson agreement, and can proceed with the foreclosure of the mortgage according to its terms.