Opinion
07-23-1908
SHREVB et al. v. HARVEY et al.
Eckard P. Budd, for compla inants. Charles Ewan Merritt, for defendants Annie R. Antrim, administratrix, etc., and Charles Ewan Merritt, executor. Linton Satterthwait, for defendants Elizabeth Page, Lawrence L. Gratz, Anna G. Keller, Anna D. Keller, Maggie M. 'Keller, Amy E. Keller, Mary Keller, Marion Keller, Lillie V. Keller, and Lillie V. Keller, guardian. Samuel A. Atkinson, for James Tallman, Sarah A. Hancock, and Mary F. Tallman, an infant, by Elmer L. Tallman, guardian.
(Syllabus by the Court.)
Suit by Joanna Shreve and others against Thomas E. Harvey, as administrator, etc., and others. Decree for complainants.
Eckard P. Budd, for compla inants. Charles Ewan Merritt, for defendants Annie R. Antrim, administratrix, etc., and Charles Ewan Merritt, executor.
Linton Satterthwait, for defendants Elizabeth Page, Lawrence L. Gratz, Anna G. Keller, Anna D. Keller, Maggie M. 'Keller, Amy E. Keller, Mary Keller, Marion Keller, Lillie V. Keller, and Lillie V. Keller, guardian.
Samuel A. Atkinson, for James Tallman, Sarah A. Hancock, and Mary F. Tallman, an infant, by Elmer L. Tallman, guardian.
WALKER, V. C. This is a litigated and complicated foreclosure involving these quesHons:
(1) "Whether an outstanding interest in the mortgaged premises passed by way of estoppel when the mortgagors afterwards acquired title; (2) whether distinct parcels of the mortgaged premises conveyed to third persons who have been in the exclusive possession of their several tracts for over 20 years, and who improved the same, without recognizing the mortgage, and without any claim on behalf of the mortgagees being made upon them, are still subject to the lien of the mortgage; (3) whether certain interests in the mortgage acquired by owners of the fee by bequest from certain of the mortgagees have merged—that is, whether their interests in the mortgage have merged in the fee for the benefit of subsequent mortgages?and (4) the amount that may be allowed counsel for the complainants to be taxed in the costs in such a case as this.
On December 9, 1858, Sarah H. Shreve, Mary E. Harvey, Charlotte H. Biddle, and Elizabeth Harvey, the younger, Peter E. Harvey, Amos E. Harvey, Thomas B. Harvey, and William T. Harvey, were seised in fee, as tenants in common, of a certain farm in the township of Mansfield, Burlington county, of which Peter Harvey, their father, had lately died seised. Peter Harvey died intestate, and the persons named were his children and heirs at law, each one being seised of an undivided one-eighth part of the farm, subject to the estate in dower of their mother, Elizabeth Harvey, the elder. On the same day, December 9, 1858, Sarah H. Shreve and Charles M. Shreve, her husband, Mary E. Harvey, Charlotte H. Biddle, and Israel Biddie, her husband, and Elizabeth Harvey, the younger, conveyed all their undivided half part of the farm to Peter E. Harvey, Amos E. Harvey, Thomas B. Harvey, and William T. Harvey by deed dated the same day, December 9, 1858, and which was recorded March 21, 1859, in the office of the clerk of Burlington county. After the deed was executed and delivered, the ownership of the farm was vested in Peter E. Harvey, Amos E. Harvey, Thomas B. Harvey, and William T. Harvey as tenants in common, each one of them being then seised of an undivided one-quarter interest therein. At this time Peter E. Harvey, Amos E. Harvey, and Thomas B. Harvey were all of age, and William T. Harvey was a minor. On January 1, 1859, Peter E. Harvey, Amos E. Harvey, and Thomas B. Harvey, the three adult brothers, in order to secure the payment of a portion of the purchase price of the farm, executed to their sisters, Sarah H. Shreve, Mary E. Harvey, Charlotte Hi Biddle, and Elizabeth Harvey, the younger, four several bonds, respectively, and also a mortgage on the lands conveyed to secure those bonds. The mortgage just referred to contains no covenants of seisin or for title, nor does it even recite the source of title of the mortgagors. It, however, described the farm in its entirety, and not an undivided interest therein. The fact that William T. Harvey was under the age at the time of the making of the mortgage by his adult brothers to their sisters did not absolutely incapacitate him from joining in the conveyance. He could have joined his brothers in the mortgage and ratified his act after he attained his majority. He must have been nearly of age at the time the mortgage was made, for on July 23, 1861, he joined his mother, the widow, and his brothers, Peter E. Harvey, Amos E. Harvey, and Thomas B. Harvey, in a conveyance of a portion of the mortgaged premises to George Black. He remained seised of the fee in an equal undivided one-fourth part of the premises until his death August 1, 1889, and by his last will and testament devised the same to his brothers last named, whereupon, the mother having died on August 10, 1880, and her estate in dower in the premises thereby having terminated, the three brothers became seised of the entire fee in the premises in these proportions: Peter E. Harvey, four-ninths; Amos E. Harvey, four-ninths; and Thomas B. Harvey, one-ninth, being the one-third of the one-third devised to him by his brother William T. Harvey, he, Thomas B. Harvey, having on March 25, 1868, conveyed his one-fourth interest to his brothers Peter E., Amos E., and William T. Harvey.
It will be remembered that the complainants' mortgage conveyed only the three undivided fourth parts of the premises described therein, and the first question is: Did the outstanding undivided one-fourth interest in those premises come under the lien of the mortgage when the entirety of the fee vested in the mortgagors under the devise to them of that one-fourth by their brother, William T. Harvey, upon his death in 1889? That it did not, and that the complainants' mortgage is still a lien only upon the three undivided fourths part and interest in the mortgaged premises, is to me clear. The case, upon this head, comes within the reasoning of Chancellor Runyon in Smith v. De Russy, 29 N. J. Eq. 407. The learned Chancellor says, at page 408 of 29 N. J. Eq.: "There is no covenant of seisin or warranty in the mortgage to her; and, although the entire premises are described in the mortgage as being mortgaged thereby, yet the description of the property in that instrument is followed by the statement that the property mortgaged is the same which was conveyed by the complainant to the mortgagor by deed of even date with the mortgage, and that the mortgage was given to secure the payment of part of the purchase money of that conveyance." In the case under consideration the entire premises are described in the mortgage as being mortgaged thereby, and, while there is no recital that the premises conveyed are the same premises which were granted by the mortgagees to the three mortgagors, together with their brother who did not join, nevertheless the fact is that such was the case, and that the conveyance had been made onlythree weeks before the mortgage was given, and therefore the mortgagees knew perfectly well that they were receiving a conveyance by way of mortgage security from three of their brothers, whereby title passed only to the three undivided fourths part of the mortgaged land. If by reason of a family arrangement, regarding the settlement of the estate of their father, it had been understood that William T. Harvey's interest in the lands was to be mortgaged to his sisters, then, as I have intimated, he doubtless would have joined in the mortgage, being within two years of his majority, and would not have repudiated his act afterwards, but would have ratified and confirmed it, or he would, upon attaining his majority, have executed to his sisters a mortgage upon his interest in the premises. That he did neither of these things, but, on the contrary, retained the fee in his one-fourth interest until his death, over 30 years after the mortgage was given, then devised it to these three brothers by will, is, to my mind, conclusive evidence that it was never intended that his, William T. Harvey's, outstanding interest in the estate should ever fall within the mortgage given by the three brothers to the four sisters on January 1, 1859, or become in any way subject to its lien. In Hannon v. Christopher, 34 N. J. Eq. 459, an after-acquired interest was held to pass by estoppel as the result of a conveyance by deed of bargain and sale without covenants, because it was found to be the intention of the parties to convey it, and it was held that, whenever it clearly appears that such was the intention of the parties, it is the duty of the court to adjudge an estoppel. This case is an authority for the view I take with reference to the mortgage under discussion, because in the case at bar it not only does not appear to have been the intention of the parties that the after-acquired interest in the lands should pass, but, on the contrary, to my mind it clearly appears that such was not the intention, and therefore no estoppel can be worked. There was excepted from the mortgage a small tract expressed to be conveyed to William C. Taylor, mentioned as a lot adjoining Thomas Page's lot. A conveyance of this lot to Taylor was made by the three brothers, the grantees of the mortgagees, on December 14, 1858, and on the same date the same grantors made a deed to Richard Page for another portion of the mortgaged premises. The deed from the sisters to the brothers was recorded May 13, 1800. The deed from the brothers to William C. Taylor, was recorded April 6, I859; the deed from the same grantors to Page, October 9, 1800. The mortgage from the brother to the sisters was recorded May 6, 1860. Besides the conveyances to Richard Page and William C. Taylor, there were conveyances made for other portions of the mortgaged premises as follows: By Elizabeth Harvey, widow, Peter E. Harvey, Amos E. Harvey, and Thomas B. Harvey, to Samuel Asay, May 1, 1860. By the same parties, William T. Harvey, joining them, to George Black, July 23, 1861. By Peter E. Harvey, William T. Harvey, and Amos E. Harvey to Mary Kirkbride, Marct 31, 1874.
It will be noticed in passing that the conveyance to Taylor was of an undivided three-fourths part of the premises, the same to Page, the same to Asay; while that to Blacl was of four-fourths, or the whole, and that to Kirkbride was for three-thirds, or the whole. No question is raised in respect of the quantum of the estate vested in any of these grantees. The Asay tract was by sundry mesne conveyances and devolutions of title finally vested in the defendants Anna G. Keller, Anna D. Keller, Maggie M. Keller, Amy E. Keller, Mary Keller, Marion Keller, and Lillie V. Keller, which tract is mortgaged to the defendant Lawrence L. Gratz to se cure the sum of $700. The Page tract wan, in like manner, finally vested in the defend ant Elizabeth F. Page. The Black tract was in like manner, finally vested in the defendants James Tallman, Sarah A. Hancock, and Mary P. Tallman. The Kirkbride tract was, in like manner, finally vested in the defendant Charlotte B. Biddle, subject to a mortgage for $2,000 given to John Bishop, trustee, by Joseph W. Biddle, the then owner, in 1891. who, John Bishop, the trustee, has de parted this life without any one having been appointed to succeed him in the trust. And Charlotte B. Biddle, the owner of the tract, claims an interest in the mortgage because she is entitled to the income of the same during her life, and the defendants Eliza Black Deacon, Anna W. Newbold, Marion E. Ellis, Bessie R. Biddle (Luce), and Sue Black Bid die claim to have an interest in it after the death of Charlotte B. Biddle, who is their mother. The only question in this suit regarding these lots is: Are they subject to the lien of the complainants' mortgage?
The deed to Page was made December 14, 1858, two weeks before the complainants' mortgage, which was made January 1, 1859, and recorded May 3, 1860, while the deed to Page was not recorded until October 9, 1800. The complainants claim that their mortgage is a lien against the property sold to Page because his deed was not recorded as required by law before the recording of the mortgage. The complainants also claim that their mortgage is a lien against the property sold to Asay because his deed was not recorded as required by law before the recording of the mortgage. Asay's deed bears date May 1, 1860, three days before the recording of the mortgage, but the deed was not recorded until September 10, 1860. The complainants also claim that their mortgage is a lien against the property sold to Black and Kirkbride because those two deeds were both given after the making and recording of the mortgage. If the mortgage be a lien upon these tracts, it would only be valid against the three undividedfourths interest in them, because at the time the conveyances just mentioned were made William T. Harvey's share had not vested in his three brothers who made the mortgage. However, the claims of the complainants concerning these tracts of land are not valid because it is admitted that none of the present owners in fee of the portions of the mortgaged premises described in these deeds nor their grantors had actual knowledge of the mortgage when the purchase of the lots was made and the improvements, which are many and valuable, wore placed upon the grounds; that the mortgagees had every opportunity to witness the improvements while being made, as they lived in the neighborhood; that the present owners and their grantors have been in possession since the time of the conveyances above mentioned continuously and without any actual knowledge of the mortgage until either a short time before, or at the beginning of, these foreclosure proceedings; that none of them have ever paid any interest upon or in any way recognized the existence of the complainants' mortgage; that neither the mortgagees nor any one representing them ever made demand upon the owners in fee of these lots, or their grantors, for any payment on the mortgage by way of principal or interest; that the mortgagees never gave notice to any of the owners of the tracts, or their grantors, when the houses and buildings were being erected, or to any occupant of the premises, that they claimed any lien by mortgage incumbrance or otherwise upon any of these tracts; that the owners of the tracts in fee, and their grantors, have had the exclusive and notorious possession of the lands, and have collected for their own use and enjoyment all the rents, issue, and profits thereof, have paid the taxes upon the lots, and have exercised in every particular all the usual acts of ownership over the same; that no entry has been made upon any of these several tracts by any holder of the mortgage. Thus it will be seen that the present owners of these tracts, and their predecessors in title, have been for more than 20 years in the full, exclusive, and actual possession of these distinct parcels of the mortgaged premises without admitting the title of the mortgagees, with no claim for principal or interest having been made upon them, and without entry by any holder of the mortgage, and therefore the mortgage is no lien at all upon any of these several tracts, even if the mortgage debt has been kept alive by payment of interest by the owners of other portions of the mortgaged premises. Ely v. Wilson, 61 N. J. Eq. 64, 47 Atl. 806; Wills v. Field, 62 N. J. Eq. 271, 49 Atl. 1128. On February 2, 1891, Thomas B. Harvey conveyed his undivided one-ninth interest in the mortgaged premises to his brothers, Peter E. Harvey and Amos E. Harvey, and they thereupon became seised of the entire fee in these proportions, namely, Peter E. Harvey an undivided five-ninths part, and Amos E. Harvey an undivided four-ninths part. On February 7, 1891, Peter E. Harvey and Amos E. Harvey executed a mortgage on the premises in question to the Mt. Holly Insurance Company to secure the sum of $1,500. On April 29, 1895, the Mt. Holly Insurance Company assigned this bond and mortgage to Thomas Antrim, who died intestate, and whose administratrix, Annie R. Antrim, is now in possession of the bond and mortgage and entitled to realize upon it. This mortgage describes the same lands as are in the complainants' mortgage, the courses and distances being the same, excepting thereout, however, the lot sold to George Black, William C. Taylor, and Mary Kirkbride, three in number. On March 26, 1895, Peter E. Harvey and Amos E. Harvey executed a mortgage on the premises in question, together with other lands, to Shreve Antrim to secure the sum of $4,000. Shreve Antrim died leaving a last will and testament, of which Charles Ewan Merritt, Esq., is the executor, and who is now in possession of the bond and mortgage, and entitled to realize upon it. This mortgage describes the same lands as are in the complainants' mortgage, with the addition of a tract which the Harveys purchased July 10, 1809, which joins the former tract, and is merged in the description. Out of this mortgage are expressly excepted the lots sold to George Black, R. H. Page, William C. Taylor, and Mary Kirkbride, four in number. On January 29, 1903, Peter E. Harvey and Amos E. Harvey executed a mortgage on the premises in question, together with other lands, to Thomas B. Harvey to secure the sum of $1,000. Thomas B. Harvey departed this life leaving a last will and testament of which Mary S. Harvey and Thomas E. Harvey are the executors, and who are now in possession of the mortgage and entitled to realize upon it. The description in this mortgage is the same as in the one given to Shreve Antrim. There is expressly excepted therefrom the lots conveyed to George Black, R. H. Page, William C. Taylor, Samuel Asay, and Mary Kirkbride, five in number. Each of these three mortgages of February 7, 1891, March 26, 1895, and January 29, 1903, conveyed the entire fee in the farm, subject to the lien of the complainants' mortgage on the undivided three-fourths of the premises. All of the sisters, the holders of the bonds and the original mortgagees, are dead, and all of the brothers, the owners of the fee and three of whom were the original obligors and mortgagors, are dead, except Amos E. Harvey, who was one of the owners of the fee and one of the original obligors and mortgagors.
It becomes important now to ascertain who are the present holders and owners of the bonds, and who are, therefore, commensurately interested in the original mortgage, for the purpose of deciding who are entitled to the proceeds of the sale to be made of the mortgaged premises, and also for the purposeof deciding another question, namely, that of merger, which has been raised as to certain interests in the mortgaged premises. The bond given to Sarah H. Shreve is now owned by the complainant Joanna Shreve, and there is due thereon the principal sum of $500, with interest at 6 per cent. from March 9, 1897. The bond given to Charlotte H. Biddle is now owned by the complainant Elizabeth B. Conrow, and there is due thereon the principal sum of $875 with interest at 6 per cent from April 1, 1890. The bond given to Elizabeth Harvey is now owned by the complainant, John H. Hutchinson, her administrator c. t. a., and there is due thereon the principal sum of $2,693, with interest at 6 per cent. from January 1, 1900. The bond given to Mary E. Harvey is now owned by the following persons and in the following proportions: Complainants Joanna Shreve, Mary H. Biddle, and Elizabeth B. Conrow, one-tenth part each; the defendants Amos E. Harvey and Thomas E. Harvey, administrator of Peter E. Harvey, deceased, one-fifth part each; and the defendants Caleb E. Shreve, Thomas E. Harvey, and John S. C. Harvey, one-tenth part each; and there is due thereon the principal sum of $3,143, with interest at 6 per cent. from January 1, 1900.
It would be to no purpose to trace the various steps by which the persons just named became entitled under the will of Mary E. Harvey, deceased, to her bond in the proportions just set out. Amos E. Harvey is the only original mortgagor still living. The premises in question, it will be remembered, were owned by him, and his brother, Peter E. Harvey, at the time of the latter's death pending this suit. He, Peter E. Harvey, died intestate and his interest in the mortgaged premises descended to his heirs at law, who are his brother Amos E. Harvey, and his nephews and nieces Joanna Shreve, Caleb E. Shreve, Mary H. Biddle, Elizabeth B. Conrow, Thomas E. Harvey, and John S. C. Harvey. The surviving brother and nephews and nieces of Mary E. Harvey just named are, as above stated, the owners of interests in the bond of Mary E. Harvey in the proportions mentioned, as well as being owners of the fee of the mortgaged premises.
In this situation of affairs the defendants Annie R. Antrim, administratrix of Thomas Antrim, deceased, who is the holder and owner of the bond and mortgage made by Peter E. and Amos E. Harvey to the Mt. Holly Insurance Company February 7, 1891, and Mr. Merritt, the executor of Shreve Antrim, who is the holder and owner of the bond and mortgage made by Peter E. Harvey and Amos E. Harvey to Shreve Antrim March 26, 1895, contend that such interest in the mortgage formerly owned by Mary E. Harvey as is owned by her beneficiaries above mentioned are merged into their legal title to the property by reason of their ownership of portions of the fee in the lands. No such contention is set up in behalf of the mortgage of 1903 given by Peter E. and Amos E. Harvey to Thomas B. Harvey. When the Mt. Holly Insurance Company took its mortgage from Peter E. Harvey and Amos E. Harvey (February 7, 1891), it is presumed to have taken it with reference to the record title which dis closed the existence of complainants' mortgage. Bingham v. Kirkland, 34 N. J. Eq. 229. If Mary E. Harvey, who was alive when this lastmentioned mortgage was given, had so disposed of her property that none of it would go to her brother Amos E. Harvey, and to the nephews and nieces of her brother Peter E. Harvey, then the mortgage of the Mt. Holly Insurance Company would remain what it was when made, namely, a second mortgage on the three-fourths interest in the farm, being, of course, a first mortgage on the other one-fourth. That this brother and these nephews and nieces are the recipients of Mary E. Harvey's bounty ought not, in my judgment, to operate for the benefit of the Mt. Holly Insurance Company. Her bequest to them of certain interests in this bond, and an accompanying interest in the mortgage, is a gift to them of so much of her property, and cannot inure to the benefit of the Mt. Holly Insurance Company unless these beneficiaries voluntarily forego their benefits. This they have not done. When the other mortgage, the one to Shreve Antrim, was made, Mary E. Harvey was dead, and her sister, Elizabeth Harvey, who was the beneficiary of her estate for life, was still living, and upon her death, by the will of Mary E. Harvey, her, Mary E. Harvey's, interest in her bond, went to her brothers and sisters and children of deceased brothers and sisters, share and share alike. Her brother Peter E. Harvey was living at her death and inherited a beneficial interest in her bond, which has since passed to his surviving brother and nephews and nieces. A search of the records at the time this lastmentioned mortgage was given would have disclosed the existence of the complainants' mortgage, and an appropriate search and investigation would also have disclosed the death of Mary E. Harvey and the interests of her brothers, nephews, and nieces in her share of the first bond and mortgage. While the doctrine of merger can be leveled against the beneficiaries of Mary E. Harvey with reference to the Shreve Antrim mortgage with much more effect than as against the mortgage of the Mt. Holly Insurance Company by reason of the facts just stated, still I am also against the view that there has been any merger with reference to the Shreve Antrim mortgage. If the Harveys had paid off their indebtedness to their sisters, they would not be permitted to keep these bonds and their corresponding interests in the mortgage alive as against the subsequent mortgagees, but, in such case, the subsequent mortgages would be moved up in the line of preference. This happens daily with reference to mortgages in consequence of payment of prior incumbrances. No equitiesare in such cases ordinarily involved, and none are involved in this transaction. Merger is essentially a matter of intention, and, where the intention to merge does not exist, the doctrine is not operative. Andrus v. Vreeland, 29 N. J. Eq. 394. Neither the Mt. Holly Insurance Company nor Shreve Antrim have been in any wise prejudiced by the bequests made by Mary E. Harvey, deceased. No equities are to be subserved by holding that those bequests, so far as they represent interests in the bond and mortgage, owned by her in her lifetime, are to be extinguished in favor of the Mt. Holly Insurance Company and Shreve Antrim, the subsequent mortgagees. One of the conditions under which merger will operate upon estates is that the two estates, the greater and the lesser (in such a ease as this the fee and the interest by way of mortgage, are in same person at the same time. 10 Am. & Eng. Ency. L. (2d Ed.) p. 589. Wills v. Cooper, 25 N. J. Law, 137-164. There was not at the time the mortgage was given to the Mt. Holly Insurance Company any interest in the beneficiaries of Mary T. Harvey in the lands in succession to her as mortgagee, her estate at that time being in her sister, Elizabeth Harvey, the life tenant, and therefore there could have been no merger with reference to that mortgage at that time. Much less could there have been any merger worked by act and operation of law since that time. While the present owners of the bond of Mary E. Harvey and her commensurate interest in the mortgage were such at the time the second mortgage, namely, that to Shreve Antrim, was given, nevertheless their ownership was as beneficiaries of the estate, and they had done nothing themselves to in any wise prejudice the position of Shreve Antrim, the mortgagee, nor can they be held to have harbored any intention, which was not shown, to surrender the benefit they derived as legatees. Therefore equally there is no merger with reference to this second mortgage. There is now due to Annie R. Antrim, administratrix, upon the mortgage given to the Mt. Holly Insurance Company in 1891, the principal sum of $1,500, with interest at 6 per cent. from March 22, 1900. There is now due to Charles Ewan Merritt, Esq., executor, upon the mortgage given to Shreve Antrim in 1895, the reduced principal sum of $2,100, with interest at 6 per cent. from May 12, 1900, plus interest on the original principal sum of $4,000 from March 26 to May 12, 1900, the principal having been reduced to $2,100 on the lastmentioned date. There is now due to Mary S. Harvey and Thomas E. Harvey, executors, upon the mortgage given to Thomas B. Harvey in 1903, the principal sum of $1,000, with interest at 6 per cent. from its date, January 29, 1903.
Directions will now be given as to the form of the decree, as follows: The whole of the mortgaged premises, or so much thereof as may be necessary, will be sold to raise and satisfy, in the first place, the bonds given to the sisters out of the three-fourths part of the proceeds of sale to be distributed as follows: To Joanna Shreve (on the bond given to Sarah H. Shreve) the sum of $500 with interest at 6 per cent. from March 9, 1907; to Elizabeth B. Conrow (on the bond given to Charlotte H. Biddle) the sum of $875, with Interest at 6 per cent. from April 1, 1900, to John H. Hutchinson, administrator c. t. a. (on the bond owned by Elizabeth Harvey) the sum of $2,693, with interest at 6 per cent. from January 1, 1900; to Joanna Shreve, Mary H. Biddle, and Elizabeth B. Conrow, Caleb E. Shreve, Thomas E. Harvey, and John S. C. Harvey one-tenth each; and Amos E. Harvey and Thomas E. Harvey, administrator of Peter E. Harvey, deceased, one-fifth each (on the bond given to Elizabeth Harvey) of the sum of $3,143, with interest at 6 per cent. from January 1, 1900. If sufficient money is not raised to pay these bonds in full, the distribution will be made pro rata; in the second place, the mortgage of the Mt. Holly Insurance Company out of the one-fourth portion of the proceeds of sale; in the third place, the mortgage of Shreve Antrim out of the one-fourth portion of the proceeds of sale; in the fourth place, the mortgage of Thomas B. Harvey out of the one-fourth part of the proceeds of sale. If any deficiency should exist in the payment of the second, third, or fourth mortgages, and any surplus should remain after the payment and satisfaction of the first mortgage, the surplus should be applied to the second, third, and fourth mortgages, respectively, pro tanto. The complainants' taxed costs and a counsel fee to be ascertained according to rule No. 224 of this court will be paid out of the three-fourths portion of the proceeds of sale, representing the first and original mortgage, before any payment is made upon the bonds secured by that mortgage. The taxed costs of answering defendants, mortgagees, will be added to the amounts provided for them in the decree and paid out of the proceeds of the sale of the one-fourth part of the premises, or out of the surplus of the proceeds of the three-fourths part, if any there be, and any deficiency remains in the payment of the defendants' mortgages. The complainants' counsel has asked for a special allowance by way of counsel fee. I regret that I cannot comply with his request. By the ninety-first section of the chancery act (P. L. 1902, p. 540) it is provided that the counsel fee in foreclosure suits to be included in the complainants' taxed costs shall be such percentage, not exceeding 5 per cent., of the amount decreed as the Chancellor may by general rule from time to time prescribe. Rule 224 was promulgated in pursuance of this statutory direction, and, as it makes no distinction between litigated and ex parte foreclosures, it comprehends both classes. This I regret; for in the present instance I would recommend an allowance for complainants' counsel. He has rendered important services not only tothe complainants, but to the defendants, in clearing up the title to the lands in question and procuring a decree for their sale and the satisfaction of the various liens above mentioned; and for this reason no costs will be allowed any of the defendants who have successfully answered the complainants; that is, those defendants who own the lots which have been exonerated from the lien of the mortgage. Counsel for the complainants must look to his clients for his extra allowance in this cause. That it is entitled to an allowance is clear (Strong & Sons v. Mundy, 52 N. J. Eq. 833, 31 Atl. 611), and, if I were at liberty to award it, I would hear the parties on the question of the amount of such counsel fee, and in advising the decree in this cause would report to the Chancellor what is a reasonable sum to be allowed (McMullin v. Doughty, 68 N. J. Eq. 776, 780, 55 Atl. 115, 284, 64 Atl. 1134).
The execution may be issued to a master, owing to the involved and complicated distribution to be made of the proceeds of sale.