Opinion
12-29-1898
HELLYER v. STOVER et ux. FLUCK v. SAME. FLEMINGTON NAT. BANK v. ELLICOTT.
B. W. Ellicott, for complainant Hellyer. Fluck & Parker, for complainants Henry A. Fluck and Flemington Nat. Bank. Ed. P. Conkling, for defendant Henry W. Stover.
Foreclosure by Josiah Hellyer against Henry W. Stover and wife, Henry A. Fluck against Henry W. Stover and wife, and the Flemington National Bank against Rachel W. Ellicott. Suits consolidated and tried together. Decree for complainants.
B. W. Ellicott, for complainant Hellyer.
Fluck & Parker, for complainants Henry A. Fluck and Flemington Nat. Bank.
Ed. P. Conkling, for defendant Henry W. Stover.
REED, V. C. The Hellyer mortgage is the first lien upon the property called the "Pennsylvania Avenue tract," and covers that property only. The Fluck mortgage covers the vacant Broad street lot, and is also a second incumbrance upon the abovementioned Pennsylvania avenue property. The Flemington National Bank mortgage covers two tracts on Main street, and is also a third incumbrance upon the said Pennsylvania avenue property. The validity of these mortgages is admitted. The only question for present solution is the order and method of sale which should be directed by the decrees. The Pennsylvania avenue property is covered by the three mortgages; the Broad street lot, by one only,—the Fluck mortgage; and Main street lots by one only,—the bank mortgage. The Main street property still belongs to the mortgagor, but the other two properties have passed into the hands of Mr. Stover. Mr. Stover has the right to have the Main street property applied to the payment of bank mortgage before resort is had to his property. The two Main street lots should be sold under the decree in the bank's foreclosure suit Then the Pennsylvania avenue property should be sold under the decree in the Hellyer foreclosure suit. If this sale should realize enough to pay the Hellyer and the Fluck mortgages, and any balance due upon the bank mortgage and remaining expenses of the suits, no further sale will be necessary. If the proceeds of the sale fall short of this, then the Broad street lot must be sold under the Fluck foreclosure decree. Fluck, although the second incumbrancer upon the Pennsylvania avenue property, can receive no portion of the money arising from the sale of that property, except to make up a deficit left by the sale of the Broad street lots, so long as anything remains due to the bank. The bank, until fully paid, has the right to compel Fluck to resort to his special security before claiming anything from the security which is common to them both. In respect to the judgments, if there is anything left of the proceeds of the sale of the Main street property after paying the bank mortgage decree and costs, it will be paid into court.
I think that each of the three suits was properly brought, and costs should be awarded in each. Costs should be paid in the bank suit out of the Main street property, if it brings enough; and in the Fluck suit out of the Broad street property, if it has to be sold, and brings enough.
If there is any fact or condition which I have mistaken or overlooked, or if the above instructions are not sufficiently explicit or comprehensive, counsel may apply for further instructions before drafting the decrees. I think counsel can agree upon the amounts due upon the respective mortgages. If they cannot, I will order a reference to a master.