Opinion
No. 53/224.
10-03-1923
ZIEMBINSKI v. WASNIEWSKI et ux.
Weinberger & Weinberger, of Passaic, for complainant. Herman C. Rust, of Passaic (Andrew Foulds, Jr., of Passaic, of counsel), for defendants.
Suit by Joseph Ziembinski against Joseph Wasniewski and wife. Opportunity afforded complainant to offer further proof.
Weinberger & Weinberger, of Passaic, for complainant.
Herman C. Rust, of Passaic (Andrew Foulds, Jr., of Passaic, of counsel), for defendants.
LEWIS, V. C. The question involved in this case has been submitted for decision on the pleadings. The bill is to foreclose a mortgage given by Stephen Adamski to the complainant, Joseph Ziembinski, for $600, dated March 30, 1915, recorded May 5, 1915. There is no question but that the consideration named passed between the parties. On May 1, 1915, Stephen Adamski conveyed the mortgaged premises to Albin F. Rowinski and Cora Rowinski, his wife. That deed was recorded May 4, 1915. On the same date of this conveyance, viz. May 1, 1915, Rowinski and wife conveyed the premises back to Kazimiera Adamski, the mother of Stephen Adamski, the original owner and mortgagor. The Rowinski deed was not recorded by Kazimiera Adamski until June 22, 1915. The mortgage in question, dated March 30, 1915, was not recorded by complainant until May 5, 1915, which is one day after the recording of the deed to Rowinski and wife, but seventeen days prior to the recording of the deed back to Kazimiera Adamski. On October 27, 1922, Kazimiera Adamski conveyed the mortgaged premises to the present defendants, Joseph Wasniewski and Helen Wasniewski. Their deed was recorded November 2, 1922. The present bill filed to foreclose this mortgage against the present owners of the property contains no allegation of fraud, nor does it set up actual notice of the existence of the mortgage to Rowinski and wife or Kazimiera Adamski at the time of the conveyances to them, respectively, on May 1, 1915, nor at the time of the recording of the Rowinski deed on May 4, 1915. The mortgage, which was recorded May 4, 1915, did not become constructive notice of the lien until the date when it was so recorded.
Upon these facts the solicitors for thecomplainant have submitted their right to foreclose, contending that the present defendants, who purchased the premises in question in 1922, were bound by constructive notice of the mortgage, which had been recorded more than seven years previous to their purchase; and that a proper title search would have disclosed the existence of the recorded mortgage; stating in their brief, however, that if it is deemed necessary to produce proof of actual notice of the existence of the mortgage by the purchasers of the property on May 1, 1915, such proof is available and can be readily submitted to the court.
The defendants, in their answer, deny complainant's right to foreclose the mortgage as against them and their property, on the ground that Rowinski and wife, who recorded their deed May 4, 1915, one day before the complainant recorded his mortgage, were bona fide purchasers of the mortgaged premises for value, without notice of the unrecorded mortgage, and that, even though these defendants had constructive notice of the mortgage at the time they purchased the premises in 1922, they are not bound by it, nor is their property incumbered by it, because they succeeded to the title of the premises free from the lien of the mortgage.
The decisions in this state are clear that one who takes title to real property, even with notice, actual or constructive, of an incumbrance, from one who had no notice thereof, and was a bona fide purchaser when his deed was placed on record, takes the title free and clear of the incumbrance. Rutgers v. Kingsland, 7 N. J. Eq. 178; affirmed 7 N. J. Eq. 658; Holmes v. Stout, 10 N. J. Eq. 419; Capital Circle, etc., v. Schmitt, 84 N. J. Eq. 95, 92 Atl. 596.
Applying this rule to the present situation, Rowinski and wife took title to the premises free and clear of the Adamski mortgage, which was unrecorded at the time of the recording of their deed, and of the existence of which mortgage it is not alleged they had actual notice. By their deed they conveyed to their grantee a like unincumbered title, and that grantee in turn conveyed a like unincumbered title, free and clear of the mortgage in suit, to the present defendants.
If the case were to rest in its present posture, therefore, I would be obliged to dismiss the bill; the answer, in my opinion, setting up a complete defense to the complainant's alleged right to foreclose as set forth in his bill. In view of the complainant's statement, however, of his ability and desire to submit proof of the knowledge of the original grantees of Stephen Adamski of the existence of the mortgage in question, which would destroy the bona fide position under which the present defendants claim immunity from foreclosure, I am constrained to reopen the case and afford the complainant the opportunity to present such proof in support of his right to foreclose.
Appropriate opportunity will also be afforded the defendant to meet complainant's proofs. A date for the hearing may be designated upon application for that purpose.