Opinion
No. 45/26.
07-17-1919
SCHREIBER v. GREEN et al. DODD v. SAME et al.
Harry T. Davimos, of Newark, for complainant Schreiber. Warner & Warner, of Newark, for trustee in bankruptcy of Joseph Green. William A. Calhoun, of Orange, for Second National Bank of Orange and receiver.
(Syllabus by the Court.)
Bill by Isidore Schreiber against Joseph Green and one Otterbein, to determine rights of parties and for a partition, etc., in which, on complainant's application, a receiver of rents and profits was appointed, who in a subsequent suit by Allison Dodd against Joseph Green and others to foreclose a mortgage covering part of the property referred to in the Schreiber suit was appointed as receiver of the rents and profits of the property being foreclosed, and in which there was a sale, leaving due a certain sum on a second mortgage hold by the Second National Bank of Orange, and after foreclosure of mortgages upon the property referred to in the Schreiber suit, but not referred to in the Dodd suit, and after the equity of Schreiber, Green, and Otterbein had been obliterated, the receiver filed a report in each case, showing the amount of rents collected and balance on hand. Motion by the Second National Bank of Orange for an order directing the receiver to pay rents on hand collected by him in each case to it, and motion by parties in the Schreiber case for an order directing receiver to pay all moneys to them. Order made on conclusion of advisory master, entitling the bank to balance on hand in the foreclosure suit and the parties in the Schreiber suit to the balance on hand in that case.
This matter was referred to Merritt Lane, Esq., advisory master, who filed the following conclusions:
On May 9, 1918, a bill was filed by Schreiber against Green and Otterbein, alleging that certain property described in the bill, the legal title of which stood in Green, belonged to Schreiber, Green, and Otterbein as tenants in common. The bill prayed for a determination of the rights of the parties, and, if necessary, a partition or division of the premises. On or about the date of filing of the bill, on application of complainant, a receiver was appointed of the rents, issues, and profits. In July, 1918, in a suit instituted by Dodd against Green and others to foreclose a mortgage covering a portion of the property referred to in the Schreiber suit, the individual acting as receiver in the Schreiber suit was appointed to act as receiver of the rents, issues, and profits of the property being foreclosed. The Second National Bank of Orange held a second mortgage, which was duly proved. In the month of April, 1919, the mortgaged premises were sold by the sheriff. There remains due to the bank on account of its mortgage the sum of some $19,000. In the meantime mortgages upon the property referred to in the Schreiber suit, not referred to in the Dodd suit, had been foreclosed, and the equity of Schreiber, Green, and Otterbein obliterated. The parties in the Schreiber suit have now agreed to a final decree, adjudging that the interest of Schreiber, Green, and Otterbein is each one-third. The receiver has filed a report in each case showing the amount of rents which he has collected and the balance which he has on hand. The bank moves for an order directing the receiver to pay the rents on hand collected by him in each case to it, on account of its deficiency. The parties in the Schreiber suit move for an order directing the receiver to pay all the moneys which he has on hand in both cases to them.
My conclusion is that the bank is entitled to the balance on hand in the foreclosure suit, and that the parties in the Schreiber case are entitled to the balance on hand in that case.
It is settled now in this state that where a receiver is appointed in a foreclosure suit he acts for the benefit of all parties to the suit claiming an interest in the property. NewJersey Title Guarantee & Trust Co. v. Cone & Co., 64 N. J. Eq. 45, at page 47, 53 Atl. 97; Last v. Winkel, 86 N. J. Eq. 356, 97 Atl. 961, affirmed 86 N. J. Eq. 431, 99 Atl. 1070. In Longdock Mills & Elevator v. Alpen, 82 N. J. Eq. 190, 88 Atl. 623, cited as authority to the contrary, it appears that the petitioner for the rents was a total stranger to the suit. Notwithstanding, therefore, the fact that the receiver in the Dodd suit was not applied for on behalf of the Second National Bank the balance in hand, after deduction of allowances, will be ordered paid to the bank.
The bank bases its claims to the rents collected in the Schreiber suit upon the ground that there is still a deficiency due it upon its mortgage, and that that mortgage covered the whole or a part of the property referred to in the Schreiber suit, and also upon the ground that the Schreiber suit involved a general administration of the affairs of a partnership, and that it, as a creditor, is entitled to protection. The bank is a stranger to the Schreiber suit, and it is immaterial whether its mortgage covers the property or not. Coddington v. Bispham's Ex'rs, 36 N. J. Eq. 574; Longdock Mills & Elevator v. Alpen, 82 N. J. Eq. 190, 88 Atl. 623. An inspection of the record in the Schreiber suit indicates that it was not brought for the purpose of administering the affairs of the partnership, and the suit is not in any sense for general administration. The bill prays for an adjudication of rights in real estate and for a partition thereof. The balance of the rents in the hands of the receiver in the Schreiber suit, after deducting allowances, will be ordered paid one-third to Schreiber, Green, and Otterbein each.
Harry T. Davimos, of Newark, for complainant Schreiber.
Warner & Warner, of Newark, for trustee in bankruptcy of Joseph Green.
William A. Calhoun, of Orange, for Second National Bank of Orange and receiver.
WALKER, CH. An order will be made in conformity with the advice contained in the conclusions of Advisory Master Lane, which are hereby adopted as the opinion of the court.