Opinion
07-19-1904
VAN HOTJTEN v. STEVENSON et al.
Preston Stevenson, for the motion. Van Blarcom, opposed.
Suit by Aaron Van Ilouten against Mary V. H. Stevenson and another to foreclose a mortgage. Heard on application to stay proceedings on the ground of the pendency of a partition suit. Denied.
Preston Stevenson, for the motion. Van Blarcom, opposed.
STEVENS, V. C. This is an application to stay proceedings in a foreclosure suit on the ground that there is a partition suit now pending which will bring about the same result, and to which the complainant and defendants are parties.
The objection that another suit is depending for the same matter is in general taken by plea, and not by motion. Dan. Ch. Pr. (0th Am. Ed.) 634; Way v. Bragaw, 16 N. J. Eq. 213, 84 Am. Dec. 187; Fulton v. Golden, 25 N. J. Eq. 353; Larter v. Canfield, 59 N. J. Eq. 407, 45 Atl. 010; Griffing v. Griffing Iron Co., 01 N. J. Eq. 209, 48 Atl. 910. In the case of such a plea, if it is not expressly averred that the suits are for the same subjectatter, facts must be stated which clearly indicate that they are. Griffing v. Griffing Iron Co., supra. The primary object of a partition bill is partition. If the land cannot be partitioned without great prejudice, then, by statute, it may be sold and the proceeds divided. The act of 1884 (Supp. Rev. p. 783), embodied with slight changes in the present partition act (P. L., 1898, p. 644), authorizes the complaint to make creditors having liens upon undivided interests parties (section 55 et seq.). It does not compel him to do so, but it says he may (section 56). If he does not, "the court on motion of either party may admit any creditor having a lien on the undivided interest, * * * a party to the proceeding." Where, and only where, a sale is decreed instead of a partition, the sciieme embodied in these provisions is to require the share of the proceeds of sale, charged with the lien, to be brought into court, and disposed of after notice to incumbrancers and other persons interested. In the case in hand, Mrs. Stevenson, being the owner of an undivided sixth part of certain lots in Paterson, mortgaged her interest to Aaron Van Houten, the owner of another undivided sixth. Nearly six years ago she commenced the partition suit. It has not yet gone to a decree. The master has reported, as to part of the real estate, in favor of partition, and, as to another part (including the part mortgaged), in favor of a sale. Exceptions takenby Mrs. Stevenson to certain portions of this report are now pending.
On April 12, 1904, Aaron Van Houten filed his bill to foreclose against Mrs. Stevenson. He has a mortgage upon her undivided interest in the land, or a part of the land, which the master has reported should be sold. It is this foreclosure suit which Mrs. Stevenson is seeking by her present motion to have stayed. Her inslstment is, necessarily, that the partition suit relates to the same subject-matter. It is obvious that as now constituted it does not. The object of the partition suit, as disclosed by the amended bill, is division of the laud among the owners, or, If that cannot be effected without great prejudice, division of the money into which the land may be converted. The object of the foreclosure suit is the collection of a debt out of the proceeds of the sale of the undivided interest of Mrs. Stevenson, These two objects are dissimilar. Sebring v. Mersereau, Hopkins' Ch. 502; Harwood v. Kirby, 1 Paige, 469. But, as I have said, the statute ingrafts upon the partition suit something quite distinct. For the purpose of enabling the land to be disposed of to advantage, and so that incumbered interests shall not hurt unincumbered ones, the statute allows the land to be sold, free from liens on undivided shares. Freeman on Cotenancy, § 479. The purchase money applicable to the incumbered shares it directs to be paid into court, and it authorizes any party in interest, either owner or incumbrancer, to apply for an order directing such part of the money as he shall claim to be paid to him. It further provides for a service of motion upon the persons interested, to be followed by a hearing. It is obvious that this is a proceeding distinct in its object from partition. Like all other judicial proceedings it begins when proper parties are brought into court for the purpose of litigating the very matter. A decree without notice to persons interested, and without a record to support it, is a nullity everywhere. Reynolds v. Stockton, 43 N. J. Eq. 211, 10 Atl. 385, 3 Am. St. Rep. 305; Id., 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464. In the case in hand, the bill of partition did not, as under section 56 it might have done, make creditors having liens on undivided interests parties. After stating the existence of the $3,000 mortgage, the amended bill alleges that: "Your orators are not advised at this time as to who the present owner of said mortgage is (It having been assigned by said Van Houten, as they are informed and believe), but beg leave to join the owner thereof hereafter by proper amendments when he is ascertained," etc. No such amendment has been made, and no application has been made by anybody to admit the mortgagee in his character of mortgagee. No petition has been presented, setting up the liens and asking for an adjudication in respect of them, and no notice has been given such as section 59 authorizes. There is nothing in the record; therefore, which discloses another suit pending for the same matter as that for which the foreclosure suit is brought. It is not even certain, as yet, whether the statutory proceeding is available; there is no decree adjudging that the land shall be sold, nothing but the master's report, recommending that course. If the land be not sold; If the court be of opinion that it may be partitioned—then there will be no foundation for the proceeding in question, for the express statutory direction is that in that event the liens shall attach upon the shares set off to the debtors.
It is obvious, therefore, that even if the question may be raised on motion, the motion cannot prevail.