ZABRISKIE v. DeVOE, 129 N.J. Eq. 366 (1941)

19 A.2d 626

GILBERT J.G. ZABRISKIE, complainant-respondent, v. ALONZO DeVOE, defendant-appellant.

Court of Errors and Appeals.Submitted February 14th, 1941.
Decided April 25th, 1941.

In a foreclosure case wherein the order of priorities was disputed and that issue tried before a Vice-Chancellor and decided by him, there was no error committed by a decree directing sale of the mortgaged premises, payment out of the proceeds of the money due on the first mortgage, adjudged as the senior encumbrance, and payment of any surplus into court to abide further order.

Page 367

On appeal from a decree advised by Vice-Chancellor Lewis, whose opinion is reported in 128 N.J. Eq. 155, sub nom. Zabriskie v Phillips.

Mr. Joseph J. Corn, for the appellant.

Mr. Jerome J. Dunn, for the respondent.

The opinion of the court was delivered by PARKER, J.

As respects the main issue involved, namely the priority of complainant’s mortgage over appellant’s unrecorded certificate of tax sale, we are clear that the decree under review should be affirmed for the reasons stated in the opinion of the learned Vice-Chancellor.

Appellant claims error, in that the decree contains no provision entitling him to payment of his tax sale certificate and second mortgage in any event. The case was a contested foreclosure, and went to hearing before the Vice-Chancellor, who, so far as appears, was not asked by appellant to ascertain the amounts claimed by appellant as due on his tax certificate and second mortgage. The decree simply calls for a sale to satisfy complainant’s first mortgage, and that the surplus, if any, be brought into court to abide its further order, unless previously disposed of by order of the court. Such decrees are not infrequent in this class of cases, and we fail to discern anything erroneous in the procedure.

It is suggested that the statute quoted in the opinion below uses the language “bona fide * * * mortgage * * *” and that respondent neither alleged nor proved that status. That the mortgage was made to secure a valid debt was alleged in the bill and is not disputed. The claim now made is that no suitable consideration for the assignment to complainant was shown, and that it may have been a gift or for nominal consideration. But to this we think there are two answers. The first is that the written assignment, duly acknowledged and recorded, is presume bona fide, and is not now challenged in any way; and the second is that the real question

Page 368

is the bona fides of the mortgage itself and not of any assignment thereof.

The decree under review will be affirmed.

For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 15.

For reversal — None.