Opinion
Decided May 20th, 1929.
The act concerning proceedings on bonds and mortgages and the foreclosure and sale of mortgaged premises thereunder ( P.L. 1880 p. 255) and the amendment thereof ( P.L. 1881 p. 184), deals only with the bond of the complainant in foreclosure, and does not apply to the bond secured by the second mortgage which was not foreclosed, so as to preclude entry of judgment on the bond for a deficiency resulting when the first mortgage was foreclosed.
On appeal from an order of the court of chancery advised by Vice-Chancellor Ingersoll, who filed the following opinion:
"The defendant Florence H. Smith held a second mortgage upon certain premises. She held the bond of the complainant for which said mortgage was given as security. The first mortgage was foreclosed, and at the sale resulting therein, it was purchased by Wilbert Beaumont for an amount less than that due upon the first mortgage. Therefor a deficiency arose, and judgment was entered upon the bond of complainant.
"In Wheeler v. Ellis, 56 N.J. Law 28, it was held that the statute "Act concerning proceedings on bonds and mortgages and the foreclosure and sale of mortgaged premises thereunder," approved March 12th, 1880, and the amendment thereof passed March 23d 1881, Rev. Supp. 498, c. (now Comp. Stat. p. 340), deals only with the bond of the complainant in foreclosure.
"The court of errors and appeals, in Schmidt v. Frey, 86 N.J. Law 215 (at p. 217), said: `We see no reason to question the soundness of the decision in Wheeler v. Ellis, 56 N.J. Law 28.'
"The amendment made to the act above referred to, laws of 1915, chapters 178, 339 ( Cum. Supp. Comp. Stat. p. 1972), does not affect the question now before us.
"The statute not applying to the bond upon which the judgment in question was recovered, the order to show cause must be vacated."
Mr. Carlton Godfrey and Mr. William I. Garrison, for the appellants.
Messrs. Thompson Hanstein, for the respondents.
The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Ingersoll.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, KALISCH, BLACK, CAMPBELL, LLOYD, CASE, BODINE, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 15.
For reversal — None.