Opinion
Decided November 12th, 1926.
The rules relating to references in uncontested foreclosure suits and reporting subsequent encumbrances contemplate only encumbrances of liquidated sums.
On exceptions to master's report.
Mr. Harry Marelli, for the complainant.
Messrs. Azzoli Krasney ( Mr. William V. Azzoli), for the exceptant.
This is an ordinary foreclosure suit. The owners of the equity of redemption are the widow and five infant children of the deceased mortgagor. The mortgagor died intestate. The widow, as "executrix," leased the mortgaged premises for a term of years, not yet expired, to exceptant's assignor. The exceptant filed notice of his claim based on the lease, and the reference directed the master to ascertain his encumbrance and to report the amount due thereon, and the master reported that the lease was void and he had no encumbrance. To this an exception was taken. If the exceptant has a meritorious claim it is not the subject of a reference under rule 186. Our rules relating to references in uncontested foreclosure suits and reporting subsequent encumbrances contemplate only encumbrances of liquidated sums. The exceptant's claim is for unliquidated damage not yet suffered by him — he has not been ousted — and must be disposed of on application for surplus money. The master's report in this respect will be disregarded and the exception overruled.
In examining the files it appears that in the proceedings to appoint the clerk of this court guardian of the five infant defendants, the solicitor of the complainant filed five separate petitions and entered five separate orders of appointment, when one petition and order would have been sufficient. The clerk, whose duty as guardian is to protect his wards, will see to it that costs are taxed as on one petition and order only, and the solicitor will tax the costs accordingly.