Opinion
09-14-1927
MEYER v. KUTCHINSKI et al.
Lange & Borrack, of Hoboken, for complainant. Eichmann & Seiden, of Jersey City, for defendants Kutchinski.
Suit by Adelheid Meyer against Gustav M. Kutchinski and others. Decree for complainant advised.
Lange & Borrack, of Hoboken, for complainant.
Eichmann & Seiden, of Jersey City, for defendants Kutchinski.
FALLON, Vice Chancellor. The bill was filed August 3, 1020 (and amended August 20, 1920), to foreclose a mortgage on premises in the town of West Hoboken (now Union City). By the terms of the mortgage the principal moneys secured thereby became due July 1, 1927. The mortgage provides that the whole, principal sum therein mentioned shall, at the option of the mortgagee, or her legal representative, become and be due and payable immediately upon default in the payment of any tax, assessment, water rent, or other municipal rate, charge, imposition, or lien, or any or either of them, if such remains unpaid and in arrear for the space of 60 days after the same becomes due and payable, notwithstanding the period limited in said mortgage for the payment of said principal sum may not then have expired. The bill alleges that on June 1, 1926, the first one-half year's tax levied against the mortgaged premises for the year 1926, amounting to the sum of $172.43, became due and payable, and remained unpaid and in arrears for more than 60 days thereafter. The tax of which the aforesaid sum of $172.43 was the one-half part, was for the fiscal year beginning January 1, 1926, and ending December 31, 1926. By virtue of the General Tax Act (Rev. 1918) P. L. 1918, p. 847, § 602, as amended by P. L. 1920, p. 429, one-half part of the annual tax for the fiscal year 1926 became payable on the 1st day of April, 1926, and remaining unpaid, became delinquent June 1, 1926. The bill alleges, and the proofs evidence, that the mortgagee, because of the nonpayment of the aforesaid tax when payable, elected that the whole of the balance of the principal sum of said mortgage ($S,000), with all unpaid interest thereon, be immediately due and payable to her. The defendants Kutchinski, apparently misconceiving the gist of the complainant's allegation of default, allege in their answer, and urged on the hearing of the cause, that taxes levied against the mortgaged premises for the year 1926 would not become a lien against said premises until December 1, 1926, and that at the time of the alleged default said premises were not subject to the lien of any tax.
The default clause of the aforesaid mortgage is expressly construed by chapter 226. § 6, P. L. 1918, to mean that should any tax, assessment, water rent, or other municipal or governmental rate, charge, imposition, or lien, or any or either of them, remain unpaid and in arrears for the number of days stipulated in the mortgage, then and from thenceforth, that is to say, after the lapse or expiration of said period, the whole principal sum of the mortgage with all arrearages of interest thereon shall, at the option of the mortgagee, her heirs, executors, administrators, successors, or assigns, become due and payable immediately thereafter, although the period limited for the payment thereof may not then have expired, anything in said mortgage to the contrary thereof in any wise notwithstanding.
The case of K. S. S. Realty Co., Inc., v. Ostroff et al. (N. J. Ch.) 135 A. 869, is applicable to and decisive of the case sub judice.
Counsel for the defendants made application, on the final hearing of the cause, for leave to amend their answer by alleging that the complainant failed to make the receiver in the case of Kutschinski v. Lawrence et ux. (docket 56, p. 188) a party defendant in the instant case. Counsel for the complainant, in objecting thereto, urged that complainant had not been informed of the appointment of such receiver, and that no lis pendens was filed in the suit in which such receiver was appointed. It appears that the solicitors for the defendants Kutchinski herein were the solicitors for the complainant Gustav M. Kutschinski in the suit of Kutschinski v. Lawrence, supra, and no substantial reason was given by the solicitors for the defendants as to why they did not allege in their answer the appointment of such receiver, and make such objectiou to the complainant's bill as filed as they may have deemed advisable or necessary. The record of the case of Kutschinski v. Lawrence, supra, evidences that the receiver therein was appointed by order dated January 27, 1925, and discharged by order dated October 4, 1926. I indicated to counsel for defendants at the hearing of this cause that I was disinclined to grant leave, at such late day, for defendants to amend their answer setting up the appointment of the receiver aforesaid. Inasmuch as said receiver was discharged on October 4, 1926, it would be futile to permit the defendants to amend their answer by alleging his appointment. Chancery rule 13 provides that the court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others.
I will advise a decree in favor of the complainant and direct a sale of the mortgaged premises to raise and pay to the complainant the amount due on her mortgage, with inferest and costs.