Opinion
02-29-1912
SYNNOTT v. KOBBE et al.
John F. Reger, of Somerville, for complainant. Frederick A. Pope, of Somerville, for defendants.
Action by Mary D. Synnott against George L. Kobbe and. others. On motion to strike answer. Denied.
John F. Reger, of Somerville, for complainant.
Frederick A. Pope, of Somerville, for defendants.
GARRISON, V. C. This is a motion based upon rule No. 213, and, as it respects an answer, it takes the place of exceptions to the answer. Exceptions to an answer could have been filed for scandal, impertinence, or insufficiency. Insufficiency, in this sense, means that a portion of the bill has not been answered; it does not mean insufficient in the sense that no equitable defense is presented. The above statements of law will be found in Steepy v. Public Service Corporation, 65 N. J. Eq. 529, 56 Atl. 127 (Reed, V. C, 1903).
First. The complainant moves to strike out the answer in this suit, upon the ground that the answer alleges that the defendants were not in default in the payment of interest at the time of the commencement of the suit, and are not now in default in the payment of said interest, although it is therein (that is, in said answer) admitted that the defendants are in default in the payment of interest, and were in default when this action was begun, and that the allegations of said answer do not show that such default has been waived by the complainant. Second. Because, in the ninth and tenth paragraphs of the said answer, the defenses set up therein are not available to the defendant Kobbe, as he was not a party to the bond and mortgage, and took title to the premises subject to the provisions of the said mortgage. Third. Because the defense just alluded to is not available to any of the defendants, as the time for answering has heretofore expired, and the said defendants are thereby precluded from setting up this inequitable defense. Fourth. Because the said defense cannot be set up as against the complainant, who is the assignee of the said bond and mortgage. Fifth. Because the facts alleged in support thereof do not constitute such a defense to the said action, and cannot vary the terms and provisions of the complainant's said bond and mortgage.
I will take these up in their order and briefly deal with each:
First. I do not perceive how it can be said that the part of the answer complained of is either scandalous, impertinent, or insufficient in the proper use of the latter term. It may be that the defendants, by whatever they have alleged in this respect, have not made out a defense; but, as has been pointed out above, this is not to be taken advantage of by the complainants upon a motion to strike out. If a defendant, by his answer, does not make out a defense, a complainant can have no more desirable remedy than to set the case down for a hearing on bill and answer, or to go to hearing upon the answer as it is, in which event the defendant will not be permitted to prove anything more than is in his answer; and, if that does not constitute a defense, the complainant will, upon proving his case, secure the decree.
Second. With respect to the second objection, conceding, for the purpose of the disposition of this case, that one who takes a property subject to a mortgage of a certain amount cannot set up such defenses as the defendant Kobbe seeks to set up, the difficulty is with the facts, and not with the law. The bill charges simply that the premises were conveyed subsequent to the execution and delivery of the mortgage, and with full knowledge thereof, and that the interest of Kobbe is subject to the lien of the mortgage. The answer admits that Shaw conveyed the mortgaged premises to Kobbe, and they admit that the conveyance was subject to a mortgage indebtedness of $24,100, and deny that it was subject to a mortgage indebtedness of $26,600. Under these circumstances, on a motion to strike out, the court could not possibly determine that Kobbe took it expressly subject to the mortgage for the greater amount. He distinctly in his answer denies that he did; and, if he can prove it, it is a good defense as to that point.
Third. With respect to the third objection, a somewhat similar situation is present. There is nothing before me to show that the time for the answering defendant to answer had expired; and that therefore they are precluded from setting up the defense they now seek to set up.
Fourth. As to the fourth objection, I know of no reason why the defenses that are made against the mortgagee are not equally goodagainst an assignee of the mortgage, unless they are purely personal defenses; and that does not seem to be the case here.
Fifth. The subject-matter of this objection is that the facts do not make out a defense; and that cannot be taken advantage of, as previously pointed out, upon such a motion as this.
For these reasons, I shall deny the motion to strike out, and refuse the motion to refer the cause to a master over the answer.