Opinion
03-19-1931
TORREY et al. v. BLAIR et al.
Russell G. Conover, of Toms River, for defendants American Supply Co. and Staples & Co., Inc. David A. Veeder, of Toms River, for defendant Heulings A. Sever.
Syllabus by the Court.
A release clause, in a mortgage on building lots, by its terms specifically limited its operation to releases to be given by the mortgagees "to the mortgagor upon the payment by the mortgagor to the mortgagees" of a specified amount per lot; held, that the release covenant was not available to mechanic lien claimants.
Syllabus by the Court.
The right of the parties to the release covenant to so limit its operation cannot be doubted.
Suit by Frederick C. Torrey and another against Samuel Blair and others.
Counterclaims stricken out.
Samuel P. Hagerman, of Blackwood, for complainants, for the motion.
Russell G. Conover, of Toms River, for defendants American Supply Co. and Staples & Co., Inc.
David A. Veeder, of Toms River, for defendant Heulings A. Sever.
LEAMING, Vice Chancellor.
The only essential inquiry herein is whether the release clause contained in complainants' mortgage enables three defendants, each of whom has filed mechanic's liens for labor or materials supplied to a building on certain lots embraced in the mortgage, to discharge the mortgage lien on such lots by paying to the mortgagees the stipulated release money.
The release clause contained in complainants' mortgage is as follows:
"And it is hereby stipulated and agreed by the parties to these presents that any lot above mentioned shall be released by the mortgagees herein named to the mortgagor upon the payment by the mortgagor to the mortgagees of the sum of One Hundred Dollars."
The language of this covenant, like that in Dimeo v. Ellenstein et al., 106 N. J. Eq. 298, 150 A. 675, specifically limits its application to releases by the mortgagees "to the mortgagor upon the payment by the mortgagor to the mortgagees" of the amount named. The right of the parties to so limit the operation of the covenant cannot be doubted.
In Ventnor Investment Co. v. Record Development Co., 79 N. J. Eq. 103, 80 A. 952, cited by defendants, the terms of the release covenant were in no way restrictive, and the evidence disclosed that the covenant was contemplated by the parties and applied by them as a covenant available to and for the benefit of purchasers of lots.
This view renders unnecessary a consideration of the other objections made by complainant.
The counterclaims will be stricken out.