Opinion
12-26-1933
CO-INVESTORS BUILDING & LOAN ASS'N v. BILLET et al.
DeGraw & Murray, of Newark, for petitioner. Levy, Fenster & McCloskey, of Newark, for the defendant purchaser.
Syllabus by the Court.
In a suit to foreclose a mortgage, where there are infant defendants, ex parte proofs before a master are not permissible.
Suit by the Co-Investors Building & Loan Association against Isadore Billet and others.
Decree in accordance with opinion.
DeGraw & Murray, of Newark, for petitioner.
Levy, Fenster & McCloskey, of Newark, for the defendant purchaser.
BERRY, Vice Chancellor.
In this cause a petition was filed setting up that the purchaser at the sheriffs sale had refused to accept a conveyance of the mortgaged premises and pay the purchase price because of an alleged defect in the foreclosure proceedings. There are two infant defendants in this proceeding for whom the clerk of the Court of Chancery was appointed guardian ad litem by order entered April 25, 1933. On April 29, 1933, a decree pro confesso was entered against the adult defendant and the matter referred to one of the masters of this court to ascertain the truth of the allegations of the complainant's bill and to report accordingly. The only proof submitted before the master was an ex parte affidavit of the secretary of the complainant association stating the amount due on the two bonds and mortgages mentioned in the bill of complaint. The bonds and mortgages were produced and marked as exhibits by the master. The master's report was dated May 10, 1933, and filed May 31, 1933. To it is attached a master's summons directed to the guardian ad litem of the infant defendants, with an acknowledgment by said guardian of service thereof indorsed thereon. Subsequently, a final decree was entered in this cause on June 5, 1933, and, pursuant to writ of fi. fa. issued thereon, the mortgaged premises were sold on August 15, 1933, to Michael Amsterdam and Rose Amsterdam for $3,142, and the sale was duly confirmed. Subsequently, they refused to take title on the ground of alleged defects in proof before the master. There was no proof before the master of the execution of the bonds and mortgages, but on July 11, 1933, subsequent to the filing of the master's report and the entry of the final decree, two ex parte affidavits of witnesses to the execution of the bonds and mortgages were filed in the office of the clerk in chancery. The prayer of the petition is that these affidavits be considered as proof to the same effect as though they had been submitted as proof before the master and that the purchasers at sheriff's sale be directed to complete the sale by accepting a deed from the sheriff and paying the purchase price.
It would seem that the proceedings are fatally defective. In a similar case it was so held by the late Chancellor Walker. Bunting v. Bunting, 87 N. J. Eq. 20, at page 25, 99 A. 840. The proofs before the master were entirely ex parte and were such as are permissible in foreclosure suits where there are no infant defendants. Chancery Rule 186a, I know of no rule, and I am not referred to any authority warranting ex parte proofs before a master in a foreclosure suit where there are infant defendants. It is true that a master's summons was served upon the guardian ad litem or at least service thereof acknowledged by him and that he had an opportunity to appear. The master's report indicates that he did not; but even so, ex parte proofs by way of affidavit, as authorized in foreclosure suits where there are no infant defendants, were not permissible and it would have availed nothing to the guardian ad litem had he appeared before the master as he could not have cross-examined witnesses, no witnesses being present at the hearing; nor could the subsequent filing of ex parte affidavits cure the defect in the proofs before the master. The prayer of the petition is, therefore, denied.
The only authorities to which I have been referred by counsel are Bunting v. Bunting, supra; Kauffman v. Jurczak, 102 N. J. Eq. 66, 139 A. 716; chapter 145, P. L. 1916, page 299 (Comp. St. Supp. 1924, § 44—22), and Chancery Rules 186a and 196. Kauffman v. Jurczak is not in point. Rule 196 has no application, nor, in my judgment, has chapter 145, P. L. 1916. Bunting v. Bunting does not appear to have been cited or commented upon in any reported decision of the courts of this state, but it is the law of this court and is dispositive of this controversy.