Opinion
12-19-1899
MASON v. DAILY et al.
Aaron V. Dawes, for complainant. A. C. Hartshorne, for defendant Peter F. Rue.
Bill by Alexander S. Mason against John Daily and others to determine the relative priority of two mortgages. Decree that the mortgages were concurrent Hens.
The question involved is in respect to the relative priority of two mortgages. One is held, through certain assignments, by the complainant, Alexander S. Mason, and the other held, through certain assignments, by the defendant Peter P. Rue. Both mortgages were executed on April 4, 1868, and recorded April 8, 1868. The facts stipulated are, in substance, these: One John Burke in 1865 conveyed the property subsequently mortgaged to his two children, Holmes C. and Emma Burke. After the death of John H. Burke, William P. Forman was appointed guardian of Emma, and he made application to have the said premises partitioned. Under these proceedings the property was sold to Holmes C. Burke for $7,000 on April 4, 1868. There were then upon the property a mortgage for $2,000 made in October, 1868, by Holmes C. Burke and Emma Burke to one Andrew Burke; another mortgage for $1,000, made by the same parties on the same day to Mary E. Anderson. On April 8, 1868, Holmes C. Burke, who had bought the property at the commissioner's sale, made three mortgages upon it,—one to William P. Forman, as guardian of John H. Burke, a minor, for $2,200, which is the mortgage now owned by the complainant; another mortgage to William P. Forman, as guardian of Emma Burke, for $1,800, which mortgage is now held by the defendant Peter F. Rue. At the same time another mortgage to Mary E. Anderson for $1,000 was made. In each of these mortgages it was stipulated that the first two should have precedence over the last. There was at the same time another mortgage made by the same parties to one Charles Allen for $800. The equity of redemption in the mortgaged property came through mesne conveyances to John Daily. At the time when this group of mortgages were recorded, namely, April 8, 1868, the two older mortgages of $2,000 and $1,000 each were canceled of record, having been produced for cancellation by William P. Forman.
Aaron V. Dawes, for complainant.
A. C. Hartshorne, for defendant Peter F. Rue.
REED, V. C. (after stating the facts). I think the two mortgages are concurrent liens. The taking of the mortgage upon the whole property by the guardian of Emma for her portion, for a part of her moiety in the proceeds of the commissioner's sale, operated as a waiver of any vendor's lien. Jones, Liens, §§ 1080, 1086. Ledos v. Kupfrian, 28 N. J. Eq. 161, admitted this doctrine, but held that the facts in that case were exceptional. The stipulation in the mortgages themselves, and the fact that both instruments were made to the same guardian,—indeed, all the circumstances,—point to the conclusion that these two mortgages were intended to be concurrent. I will advise a decree in accordance with this view.