Stumpf v. Hallahan

O’Brien, J.: In this action on the bond for a deficiency arising from the fore.closure of the mortgage covering lands in New Jersey given to secure the bond, the defendants among others interposed as a defense the statute, of New Jersey regulating proceedings to recover on bonds and mortgages, and the foreclosure and sale of property thereunder. ■ That statute, among other things, provided that in all cases where a bond and mortgage were given for the same indebtedness the proceedings to collect the debt shall be : First, to- foreclose the mortgage, but no deficiency judgment can be obtained in a foreclosure action; second, if the property does not sell for enough to satisfy the debt, interest and costs, an action may be brought on the bond for the deficiency within six months after the sale; third, if the mortgagee recovers a judgment for the deficiency in an action' on the bond, the foreclosure is opened and the mortgagor may redeem within six months after the entry of judgment. (See Gren. Stat. N. J. 2112, §§ 47, 48.) The point upon which the learned trial judge decided the case was that this New Jersey statute was binding and was a bar to the maintenance of this action. It follows, therefore, that the question [386] which is presented for our determination .upon this appeal is as to whether the hand in suit is' governed by the law of Hew York or by the law of Hew Jersey. Some of the general rules respecting the law of place summarized by the appellant,' which we regard as settled, may be stated: First, all matter bearing Upon the execution, interpretation and validity of contracts, including the capacity of the parties to the contract, are determined by the law of the place where the. contract is made (Union Nat. Bank v. Chapman, 169 N. Y. 5.38) ;• second, all matters connected with its performance are regulated by the law of the place where the contract, •by its terms, is to be performed; third, if no place of performance is mentioned in the contract, a presumption arises that the parties intend that it should be performed" where it is made;. -fourth, ' contracts referring to the transfer of title to land are governed by the law of the place where" the land is situated; fifth, all matters respecting the remedy to be pursued, including the bringing of suit, etc., depend upon the law of. the place where the action ^is brought. These general rules are subordinate to the primary canon of construction, which "requires that where it can be ascertained -the intention of the parties, shall govern. Thus, though it may be stated generally that a contract is to be considered and determined under the law of the State where it was made, this rule is of no force in a case where it can be fairly said that the parties at the time of its execution, manifested an- intention that, it should be governed by the. laws of another State; or, differently expressed, “ where thé contract is, either, expressly or tacitly, to be performed in any other place (than where made), there the general' rule is in conformity to the ■ presumed intention of the parties, that the contract as to its' validity, nature, obligation and interpretation is to be governed by the law of the place of performance.” (Story- Confl. Laws [8th ed.], § 280.) As indicative-of the intention of the parties, as to the law of the place which should govern, we start first with the proposition, not" to be disputed, that the bond and mortgage constituted one contract and are to be considered together. Examining them, we find that the obligee was a resident of Hew Jersey; that the bond was secured' by mortgage on lands in-Hew Jersey; that the bond is made in reference to the laws of Hew Jersey^ that being the State in which the lands mortgaged to secure the payment of . said bond were, situate, [387] and. that obligee foreclosed the mortgage in Hew Jersey, thus taking advantage of the laws of that State in respect to the foreclosure. We say that the bond was payable in Hew Jersey, because, that being the residence of the mortgagee, the law requires that the debtor must seek the residence of the creditor for the purpose of discharging the debt. Though not a conclusive consideration, the manifest injustice of applying any other rule to the facts here appearing is apparent. By the conveyance to Weed in which he assumed and agreed to pay the mortgage debt, the relation of principal and. surety was created as between the parties. The mortgagee must be held to have legally received notice by the recording of the deed, and she must have had actual notice at the time of the commencement of her foreclosure suit. She was not at liberty to disregard the relationship thus created, or do any act prejudicial to the interests and rights of the surety. She neglected, however, to notify them or make them parties in the foreclosure action, and thus elected to make the land the primary fund, and by selling it as she did the defendants- lost their rights to protect the security, or do what they could to protect themselves against a deficiency. Had they brought suit in Hew Jersey within the six months as provided by statute, the defendants would have had the right to redeem. Instead, however, of following that remedy, she waited nearly three years béfóre proceeding upon the bond, and then the land having gone forever, the defendants were unable to protect themselves and could no longer redeem ; and although upon the trial the defendants tendered the full amount due, the mortgagee was unable or unwilling to restore to the defendants the property. We deem it unnecessary to decide the point as to whether or not the failure to make the defendants parties in the foreclosure suit and the proceedings taken to sell the property discharged the defendants, because upon the first proposition which we discussed, as to whether it was the law of Hew York of the law of Hew Jersey that should govern, we have sufficiently indicated our view that the law of Hew Jersey must govern. Under the statute of that •State the right to proceed upon the bond for a deficiency was barred, and the learned trial judge was right in holding that the plaintiff’s action could not be maintained. In directing a nonsuit, which is an anomaly, there was an error in form. The learned [388] trial judge,' having reached a correct conclusion in favor of the defendants, should have directed the jury to find a verdict in their favor. This, however,, is a. raeré: error in form which should be corrected, and the judgment should accordingly be modified, and as so modified affirmed, without costs. Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred. Judgment modified as directed in opinion, and as modified affirmed, without costs-.