Opinion
No. 41/646.
03-06-1917
ELMORA WEST END BUILDING & LOAN ASS'N v. STREDE et al.
William E. Reibel, of Elizabeth, pro se. William F. Groves, of Elizabeth, for defendant.
Bill to foreclose mortgage by the Elmora West End Building & Loan Association against Albert E. Strede and others. Decree of foreclosure, and defendant Reibel moves for stay and to open decree and dismiss bill. Proceedings conditionally stayed.
William E. Reibel, of Elizabeth, pro se. William F. Groves, of Elizabeth, for defendant.
LANE, V. C. After fieri facias was issued and sale advertised by the sheriff of Union county an agreement was entered into between the parties under the terms of which petitioner was to pay to complainant the taxed costs, back interest, and current dues. The proposition of settlement is contained in the statement appearing upon the minutes of the meeting of the association held November 14th. Reibel agreed to pay all of the costs and back interest due on themortgage, and also to pay off the back interest as rapidly as possible if the foreclosure suit was postponed. Back interest and costs amounting to $276.17 were to be paid by certified check to the solicitor on November 15th. This money was finally paid, and the dues and interest, becoming due in December, were paid. A dispute then arose between the parties as to the payment of back dues. Finally a plan was agreed upon under which Reibel was to reduce the number of shares represented by Book 282 to 17, applying the dues and earnings of the 4 shares to pay off the back interest and fines charged against Book 282 and 462, thus making the face of both mortgages aggregate $3,800 and reducing the monthly payments to $38 instead of $44. Petitioner agreed to do this, but finally on December 27th wrote the association that, due to some misunderstanding as to the amount due, he did not care to straighten out the matter. He then demanded the return of the money which he had already paid. On December 12th the solicitor of the complainant wrote the sheriff:
"The foreclosure, etc., * * * has been settled as of November 15, 1916, and you will kindly so mark it on your books."
The property has now been readvertised for sale. The present application is to stay the sale, open the decree, and dismiss the bill. That the decree cannot be opened and the bill dismissed is settled. Hudson Trust Co. v. Boyd, SO N. J. Eq. 267, 84 Atl. 715. The mortgage has become merged in the decree. The chancellor questioned whether if the decree were opened and vacated the mortgage would be revived. The proper procedure, if there is a settlement is to stay proceedings. Quære: If proceedings are stayed and defendant fails to carry out his agreement, is the proper procedure then to prevent the stay or to commence a new foreclosure, treating the decree and the new agreement as securing a debt which cannot be enforced without formal foreclosure? The correct practice, of course, would be to execute a new mortgage and satisfy the decree. There is no denial on the part of the petitioner of the facts set forth in the answering affidavits.
I conclude that the contract of settlement has not been carried out to an extent which would prevent the complainant from proceeding on its decree. It is apparent from the statement made at the meeting of the association and from the correspondence that before the association would do more than merely postpone the sale, the petitioner would be obliged to pay the back interest and fines or enter in some such agreement as the complainant insists he entered into and then declined to carry out. The petitioner cannot insist upon the return of the money which he has already paid, in view of his refusal to proceed and perform his agreement.
The association is not bound by the statement to the sheriff by its counsel that the matter has been settled. This was a palpable mistake in terminology.
The case is somewhat similar to Sandford v. Wellborn, 85 N. J. Eq. 577, 96 Atl. 1918.
If the petitioner shall, within 15 days of the signing of an order, carry out his agreement with the association, I will stay the proceedings under the authority of Hudson Trust Company v. Boyd. If he shall not, I will discharge the restraint and the order to show cause. Credit must, of course, be given under the decree for the moneys actually paid, and counsel for complainant should consider whether it is not necessary to issue a new fieri facias.