Opinion
05-26-1937
FIDELITY UNION TRUST CO. et al. v. APPLEBY et al.
Herbert J. Hannoch, of Newark, for complainants. Lindabury, Depue & Faulke, of Newark, for defendant Mary Myer Appleby. Durand, Ivins & Carton, of Asbury Park, for defendants Alice C. Appleby and Richard H. Appleby. Henry K. Golenbock, of Perth Amboy, for defendant Stewart Appleby. Quinn, Parsons & Doremus, of Red Bank, for defendants Theodore F. Appleby and Mary Appleby.
Syllabus by the Court.
A mortgagor debtor, able, but neglecting, to protect himself at foreclosure sale, or by refinancing his mortgage pending foreclosure, may not invoke the equitable rule of Federal Title & Mortgage Guaranty Co. v. Lowenstein, 113 N.J.Eq. 200, 166 A. 538, designed only for the relief of the distressed and helpless.
Suit to foreclose mortgage by Fidelity Union Trust Company and others against Alice C. Appleby and others. On objection to confirmation of the foreclosure sale and petition for other relief.
Decree in accordance with opinion.
Herbert J. Hannoch, of Newark, for complainants. Lindabury, Depue & Faulke, of Newark, for defendant Mary Myer Appleby. Durand, Ivins & Carton, of Asbury Park, for defendants Alice C. Appleby and Richard H. Appleby. Henry K. Golenbock, of Perth Amboy, for defendant Stewart Appleby. Quinn, Parsons & Doremus, of Red Bank, for defendants Theodore F. Appleby and Mary Appleby.
BERRY, Vice Chancellor.
The complainant's decree was for approximately $75,000, and the mortgaged premises were purchased by complainant at the sheriff's sale for $100 subject to taxes of about $5,000. Objections to the confirmation of sale were promptly filed and also a petition invoking the doctrine of Federal Title & Mortgage Guaranty Co. v. Lowenstein, 113 N.J.Eq. 200, 166 A. 538, and kindred cases. By consent of the parties the matter was referred to a master to take proofs as to the value of the mortgaged premises and other matters pertinent under Young v. Weber, 117 N.J.Eq. 242, 175 A. 273. The master has now returned the proofs which have been carefully examined and from which it appears that the mortgaged premises at the date of the sheriff's sale had a value variously estimated by experts from $45,000 to $110,000, and obviously far in excess of the amount of complainant's bid at which the property was struck off and sold. The proofs also disclose, however, that at the time of the foreclosure sale the defendants liable on the bond owned unencumbered real estate located in Asbury Park, N. J., of an estimated value in excess of $400,000 (complainant's solicitor says $405,000 and this figure is not challenged by any of the defendants), and I am convinced that, by the exertion of a reasonable amount of business effort pending foreclosure and sale, defendants could have refinanced the mortgage. They are, therefore, not entitled to invoke the equitable rule of the principal case. Maher v. Usbe Bldg. & Loan Ass'n, 116 N.J.Eq. 475, 174 A. 159; Young v. Weber, supra; and Harvester Building & Loan Association v. Kaufherr, 121 N.J. Eq. 327, 190 A. 491. Defendants' petition for relief is an appeal to the conscience of the chancellor and seeks relief as a matter of grace and not of absolute right. A mortgage debtor with $400,000 in unencumbered real estate at his command who stands idly by and permits his mortgaged property to be sold at foreclosure sale for a nominal sum, without making any effort to refinance the mortgage or protect himself at said sale, is not entitled to invoke the equitable rule designed only for the relief of the distressed and helpless debtor. It is argued that, because of restrictions against alienation and the absence of a power of sale in decedent mortgagor's will, the executor defendants could not refinance complainant's mortgage; but this is a non sequitur and it is plain that no effort was made.
We are not here concerned with any possible right to statutory relief. Chapter 88, P.L.1935, p. 260, N.J.St.Annual 1935, § 134—49(1) et seq. The present petition is directed to the inherent jurisdiction of the chancellor which he may exercise or not according as the circumstances appeal to his conscience. That discretionary power will not now be exercised to the extent of granting the full measure of relief sought. However, conceding that $100 does not representthe fair value of the mortgaged premises, the complainant consents to a resale. This, under the circumstances, is all the relief that defendants are entitled to, and they may take such measures to protect themselves at such resale as they may be advised.