Summary
In Ratner v. Gordon, 118 Atl. 338 (not otherwise reported), Vice-Chancellor Foster stated: "If petitioner's contention that, by reason of her inchoate right of dower, she has an interest in the mortgaged premises that entitles her to redeem, be adopted, her application must still be denied because it appears, from the recitals of her petition and from her prayer for relief, that she has coupled her tender and offer of redemption with a demand for the assignment to her of the mortgaged security.
Summary of this case from Flemington National Bk. and Tr. Co. v. SindlingerOpinion
No. 51/555.
06-27-1922
RATNER v. GORDON et al.
Aaron Levinstone, of Newark, for complainant. Abraham Rudensey, of Newark, and Benjamin Gross, of Jersey City, for defendant Tzirye (Celia) Gordon.
Suit by Jacob Ratner against Hyman Gordon, Tzirye (Celia) Gordon, and others. Petition by Tzirye (Celia) Gordon for a rule to show cause. Petition denied.
Aaron Levinstone, of Newark, for complainant.
Abraham Rudensey, of Newark, and Benjamin Gross, of Jersey City, for defendant Tzirye (Celia) Gordon.
FOSTER, V. C. The bill is filed to foreclose a mortgage for $2,500, dated December 19, 1919, made by the Tenrose Holding Company to Rosie Rothrosen. On June 29, 1920, the Tenrose Holding Company conveyed the premises to the defendant Hyman Gordon, subject to the mortgage incumbrances thereon. The defendant Tzirye (Celia) Gordon is the wife of Hyman Gordon. On November 9, 1921, the bond and mortgage were duly assigned to complainant. The principal secured thereby became due on January 19, 1922, with interest thereon from June 19, 1921. By amendment to the bill filed on April 29, 1922, certain judgment creditors of the defendant Hyman Gordon were made parties defendant,
About May 16, 1922, the defendant Tzirye (Celia) Gordon filed her petition in this cause, reciting her dower interest in the mortgaged premises, and asking for a rule to show cause upon complainant why he should not be compelled to accept payment of the principal of the mortgage, with interest and costs, and to execute to her a proper assignment of the mortgage. Upon the return of the rule today, the amount due complainant was formally tendered, and it was urged by counsel for the petitioner that, by reason of and for the protection of her inchoate right of dower in the premises, she was entitled to pay or redeem the mortgage, and to have the same assigned to her, and to be subrogated to all the rights of complainant as mortgagee.
Petitioner's rights in this matter must be controlled by the rule stated in Bigelow v. Cassedy, 26 N. J. Eq. 557, where Mr. Justice Van Syckel, delivering the opinion of the Court of Errors and Appeals, held that
"As a general rule, all persons who have acquired an interest in the lands mortgaged, when the mortgage is liable to be foreclosed, have a right to disengage the property from all incumbrances, when it becomes necessary to do so in order to make their own claims available or beneficial. * * * This does not carry the right to demand of the mortgagee an assignment of his security."
A qualification of this rule, which gives the right to an assignment of the security, is where the redeeming party occupies the position of surety for the mortgage debt. If petitioner's contention that, by reason of her inchoate right of dower, she has an interest in the mortgaged premises that entitles her to redeem, be adopted, her application must still be denied, because it appears, from the recitals of her petition and from her prayer for relief, that she has coupled her tender and offer of redemption with a demand for the assignment to her of the mortgaged security. This demand she is not entitled to make; for, assuming she has the right to redeem, which I seriously doubt, her tender of payment must be unqualified. Admittedly such unqualified tender has not been made, and the aid of this court to effectuate the redemption petitioner desires is sought solely to compel complainant to assign his securities to her.
This relief petitioner has not shown herself entitled to receive, and I will advise that her petition be denied.