Opinion
05-18-1901
NATIONAL BUILDING & LOAN ASS'N v. STRAUSS et al.
George H. Lambert, for the motion. C.C. Black, opposed.
Application by the National Building & Loan Association against Tessie K. Strauss and others for writ of assistance. Denied.
George H. Lambert, for the motion.
C.C. Black, opposed.
EMERY, V. C. Complainant, who has purchased mortgaged premises at foreclosure sale upon its mortgage, applies for a writ of assistance, claiming that the respondent is bound by the decree for sale. The only defendants to the suit were Tessie K. Strauss and the Elizabeth Mutual Building & Loan Association as a judgment creditor. The Judgment of the Elizabeth Building & Loan Association against the defendant Strauss was recovered on September 6, 1899, and a sale of the mortgaged lands was made on November 29, 1899, by the sheriff of Union, under an execution on the judgment. Peter Donald was the purchaser at sheriff's sale by deed recorded December 8, 1899 and claims possession of the premises under this deed, and the respondent is a tenant claiming under Donald. The bill to foreclose was filed on September 25, 1899, but no subpoena to answer appears to have been issued against either Mrs. Strauss or the building and loan association, the only defendants named in the bill, until January 3, 1900,— more than a month after the sale under the judgment, and nearly a month after the deed to Donald was recorded. The question raised on this state of facts appearing by the record is whether Donald is so clearly bound by the decree that a writ of assistance against his tenant should be directed. The general rule is that filing of a bill, without issuing and also serving a subpoena, is not notice of lis pendens to a purchaser subsequent to the filing of the bill. Haughwout v. Murphy (Err. & App. 1871) 22 N. J. Eq. 531. And it has also been decided that under the lis pendens statute (section 57, Chancery Act 1875, amended in 1888 [1 Gen. St. p. 402, par. 101]) the provision for filing a lis pendens in the county clerk's office did not relieve complainant from the necessity of serving subpoena, and that a bill to enforce a vendor's lien and lis pendens filed was not notice to a mortgagee of the vendee, who had received his mortgage from the defendant vendee after filing of the bill and lis pendens, but before subpoena served. Ledos v. Kupfrain (1877) 28 N. J. Eq. 161, 164 (Runyon, Ch.). Whether Donald, who purchased under a deed recorded before subpoena was served on the judgment creditor, and was not himself made a party to the foreclosure suit, is bound by the decree made against the plaintiff in the judgment, depends, or may depend, upon the question whether the seventy-eighth section of the chancery act (1 Gen. St. p. 387), relating to foreclosure of mortgages, makes the decree in a foreclosure suit binding where subpoena was neither issued nor served upon a defendant named in the bill until after the assignment of his interest. This question is one of such a character that the effect of the decree in foreclosure must be left to be tried at law by an action of ejectment, and should not be decided on an application for a writ of assistance. Ordinarily, the writ of assistance is only granted against parties clearly bound by the decree, and where, on the application for the writ of assistance, there is no substantial question that they are so bound. If there is such question, the respondent has the right to have his legal rights regularly settled at law. Schenck v. Conover (1800) 13 N. J. Eq. 227, 78 Am. Dec. 95 (Williamson, Ch.); Vanmeter v. Borden (1874) 25 N. J. Eq. 414 (Van Fleet, V. C).