Opinion
12-26-1929
DOTTO v. CIAMBOLI et al.
Philip J. Schotland, of Newark, for complainant. Ovideo C. Bianchi, of Orange, for defendant.
(Syllabus by the Court.)
Suit by Catherine Dotto, executrix of one Dotto, deceased, against Pietro Ciamboli and another. Decree for complainant.
Philip J. Schotland, of Newark, for complainant.
Ovideo C. Bianchi, of Orange, for defendant.
BACKES, Vice Chancellor. The bill is to foreclose a real estate mortgage made by the defendant Ciamboli to one Laudati for $4,800, May 1, 1924, payable May 1, 1928. Laudati assigned the mortgage to Dotto, the complainant's testator, June 1, 1925, to secure a loan of $2,500. The documents were delivered and duly recorded and remained in the possession of the assignee or his estate. Ciamboli had no actual notice of the assignment and, in ignorance, paid all but $600 of the mortgage debt to Laudati; $866 before the assignment was recorded, and $3,334 after, which Laudati pocketed. The money was paid in small sums as Ciamboli was able to earn and save it. There is $1,800, due on the $2,500 loan—a memorandum found in Dotto's papers shows three payments aggregating $700. Laudati claims to have paid the Dottoloan in full, and he gave at least three different and conflicting versions of how that was done, any of which, if the others were true, was obviously false; and to round out his string of falsehoods he says he was authorized by Dotto to collect the principal and interest and that he paid it over to him as he got it. The truth is not in him. He is both thief and liar and resorted to perjury to shield himself from the wrath of Ciamboli, fearing nothing from the dead Dotto. His testimony is without probative value.
Ciamboli was charged in law with notice of the recorded assignment, and payments made thereafter to Laudati cannot be credited on the mortgage debt. Emery v. Gordon, 33 N. J. Eq. 447; Steadman v. Foster, 83 N. J. Eq. 641, 92 A. 353.
The complainant is entitled to a decree for $1,800 and interest.