Opinion
08-31-1914
HARRIS et al. v. PEARSALL.
T. A. Spraggins, of Jersey City, for complainants. Lloyd Thompson, of Westfield, for defendant.
Bill by Walter J. Harris and another against Leigh M. Pearsall, for specific performance. Decree for complainants.
T. A. Spraggins, of Jersey City, for complainants. Lloyd Thompson, of Westfield, for defendant.
STEVENSON, V. C. (orally). I shall dispose of this case without regard to technicalities. There are a number of technical questions which arise in the case. We have two parties suing as complainants, whose interests are entirely distinct No objection has been made to the bill on the ground of multifariousness or misjoinder, and this is the sort of a case which very conveniently can be brought in that way, although an accurate analysis of the case would disclose two separate causes of action, which do not corelate. There is no difficulty in making a decree which covers the cases of both of these parties complainant as to their respective lots.
I shall construe the bill, not as a bill to quiet title, but as a bill to, redeem, or as a bill to compel the specific performance of the covenant contained in the mortgage, and my conclusion is that this clause in the mortgage is not limited at all to any period, is permanently attached to the mortgage, and follows it as long as the mortgage exists, and that any person who acquires 2,500 square feet of land covered by that mortgage may at any time before the mortgage comes due, or afterwards, come forward and tenderthe money and have the benefit of the clause for a release, contained in the mortgage.
This is not a new question in my mind. I have had occasion to consider it heretofore, and while there is no reported case that I know of where the question has been discussed or decided in this state, without any authority to the contrary, I think it is the duty of the court to take the language of the covenant precisely as it reads.
There is nothing in the mortgage which indicates that that covenant was to be operative only while the mortgage remained outstanding and not due. The language is general, and in my judgment creates an absolute, permanent right, and practically has the effect of distributing the mortgage through the tract, very much as if a separate mortgage was given on every 2,500 square feet. Of course that is not an accurate statement, because, under the terms of this covenant, a man might have 3,500 square feet, and, by tendering the right amount, would be entitled to his release.
While the decree will give the complainants releases upon their payment of the amount, according to the scale fixed by the mortgage, it is very clear that they are not entitled to any costs. They have not proved that they made any tender.
If this is to be regarded as a bill to redeem, then, under the old English rule, costs have to be paid by the complainant, not by the defendant. But that rule grew out of a state of affairs which does not exist, in my judgment, in this country, and I do not think the American courts have enforced it; it has not been declared to be a rule of practice in New Jersey. Moreover, this bill is more in the nature of a bill for the specific performance of the covenant contained in the mortgage.
In my judgment the complainant is not entitled to any costs, and, if the defendant had not come in with an answer denying the right of the complainant to a release, I think the decree should award costs to the defendant; but, inasmuch as the defendant filed an answer denying the right of the complainants to any release at all, the decree will not award the defendant any costs. There will be no costs allowed to either party.